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Home My WebLink About20150835.tiffFINDINGS AND RESOLUTION RE: FINDINGS AND RESOLUTION CONCERNING APPLICATION OF CARPCO, LLC, AND 7 -ELEVEN, LLC, DBA 7 -ELEVEN STORE #39510A, FOR 3.2% BEER RETAIL LICENSE, AND AUTHORIZATION FOR CHAIR TO SIGN The application of Carpco, LLC and 7 -Eleven, LLC, dba 7 -Eleven Store #39510A, 3914 Highway 119, Longmont, CO 80504, for a 3.2% Beer Retail License, came on for hearing on the 30th day of March, 2015, at 9:00 a.m., and the Board of County Commissioners of Weld County, Colorado, having heard the testimony and evidence adduced at said hearing, having considered the testimony, evidence and remonstrances filed with said Board, and having carefully weighed the same, now makes the following findings: 1. The evidence discloses that the applicant has sustained the burden of proof as to the desires of the inhabitants. 2. The applicant is of good character and reputation. 3. The applicant has proven the reasonable requirements of the neighborhood. RESOLUTION 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, the Board has considered the application of Carpco, LLC, and 7 -Eleven, LLC, dba 7 -Eleven Store #39510A, 3914 Highway 119, Longmont, CO 80504, for a 3.2% Beer Retail License, for the sale of fermented malt beverages, containing not more than 3.2% of alcohol by weight, in sealed containers not for consumption at the place where sold, and WHEREAS, said applicant has paid to the County of Weld the sum of $875.00 for the hearing fee, in addition to the other required fees, and WHEREAS, due to the Findings of the Board of County Commissioners in this matter as stated herein, the Board deems it advisable to approve said application for a 3.2% Beer Retail License for Carpco, LLC and 7 -Eleven, LLC, dba 7 -Eleven Store #39510A. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that having examined said application, the qualifications of the applicant, and the testimony of those present at the hearing, does hereby grant License Number 2015-05 to said applicant to sell 3.2% fermented malt beverages in sealed containers not for consumption at the place where sold, only at retail at said location; and the Board does hereby authorize and direct the issuance of said license by the Chair of the Board of County Commissioners, attested to by the Clerk to the Board of Weld County, Colorado, which license shall be in effect until June 7, 2016, providing that said place where the licensee is authorized to sell 3.2% fermented malt CC. so 'QIq 2015-0835 LC0052 3.2% BEER LICENSE - CARPCO LLC AND 7 -ELEVEN LLC DBA 7 -ELEVEN STORE #39510A PAGE 2 beverages in sealed containers not for consumption at the place where sold, shall be conducted in strict conformity to all of the laws of the State of Colorado and the rules and regulations relating thereto, heretofore passed by the Board of County Commissioners of Weld County, Colorado, and any violations thereof shall be cause for revocation of the license. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said application. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 30th day of March, A.D., 2015. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTESTL.t4rAwo jej_;tik Weld County Clerk to the Board y Clerk to the Date of signature: LE/9 arbara Kirkmeyer, Chair Mike Freema Pro-Tem Tem • _ can P. Conway e A. Cozad (E z -t f)22ti LEA y� teve Moreno 2015-0835 LC0052 Weld County and State of Colorado Liquor License, was picked up in person by Frank Stofflet, applicant, on June 9, 2015 Representative: Frank Stofflet 7-11 Store #39510A Witnessed by Rafaela Martinez, Deputy Clerk THIS LICENSE MUST BE POSTED IN PUBLIC VIEW DR 8402 (07/01/2012) STATE OF COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1881 Pierce Street, Suite 108 Lakewood, Colorado 80214 CARPCO L.L.C. & 7 -ELEVEN, INC. dba 7 -ELEVEN STORE 39510A 3914 COLORADO HIGHWAY 119 LONGMONT CO 80504 ALCOHOL BEVERAGE LICENSE Liquor License Number 4600326 License Expires at Midnight June 07, 2016 License Type 3.2% BEER OFF PREMISES (COUNTY) Authorized Beverages 3.2 PERCENT BEER This license is issued subject to the laws of the State of Colorado and especially under the provisions of Title 12, Articles 46 or 47, CRS 1973, as amended. This license is nontransferable and shall be conspicuously posted in the place above described. This license is only valid through the expiration date shown above. Any questions concerning this license should be addressed to: Colorado Liquor Enforcement Division, 1881 Pierce Street, Suite 108, Lakewood, CO 80214. In testimony whereof, I have hereunto set my hand. 6/8/2015 JAH Division Director Executive Director 9'4s_Wtrarg:.02:.daCairaira0rnaaadrZLCS:)SL, O • N z Ct 44 Ct Z U fr-4 w ) Qt cbs r i H fir - W N Z W J O a J J Q F — W r—• idea FOR A 3.2 PERCENT BEER RETAIL LIQUOR LICENSE T BEVERAGES CONTAINING NOT MORE THAN 3.2% OF ALCOHOL BY WEIGHT TO SELL FERMENTED Colorado 80504, in the L re . `. n re - L E' �- tea' i., L J E L L r' O L-+ G O`3 J. :� 14 3"1 V J en V ,, 1.11 •-• L O 7.1 tk L J r—' • ...1 •— •L x dba 7 -Eleven U a_ $.4 -3 V k La J ^ iJ ✓ V '-i ^ ✓ CL" -I L 4-s ,J L • L — Cl L:( • C C L ._ - _ !i, E Li as a 3.2 Percent •n •r, L NO rl J . 0-0 I n r1, DC G 0-4 • /5l J • 1-4 L0-0 ✓ 17.4 r a La L 3-4 •1 3.) L -1, ✓ :) u - 1 C 3) L_ -' L U v J 'ID 3-0 3) U r — f a.a •.r L l La • MCt L La • z ..i Lauf fai LEI ,l • ! 4rnm1sMi'nLrS e3 • 41±:4I1 alga- a - c fits a I Ct 0 U r� VJ T--4 0 'U ►1 �i z ►s, II cell: W hai4pa. 4 f 44 4 C4 t o ism • }—ti r bri 1 1 cff`4jei lelleiq•;4t,; I March 26, 2015 BOARD OF COUNTY COMMISSIONERS PHONE: (970) 336-7204, EXT.4200 FAX: (970) 352-0242 1150 O STREET P.O. BOX 758 GREELEY, COLORADO 80632 Carpco, LLC and 7 -Eleven, Inc. dba 7 -Eleven Store #39510A 3914 Highway 119 Longmont, CO 80504 RE: Report of Investigation for Colorado Liquor License Application — 7 -Eleven Store #39510A To Whom It May Concern: On Thursday, March 19, 2015, I traveled to the proposed licensed premises known as 7 -Eleven Store #39510A, located at 3914 Highway 119, Longmont, Colorado. While there I made an on -site inspection regarding the Liquor License Application filed. The application is for a Retail 3.2% Beer License. It will be heard by the Board of County Commissioners as the liquor licensing authority for Weld County on Monday, March 30, 2015, at 9:00 a.m. My inspection revealed the following: 1. The proposed licensed premises is not directly connected to a different licensed premises. Section 12-47-301(3)(a), C.R.S. 2. The diagram of the proposed licensed premises is correct. Section 12-47-309(3), C.R.S. 3. There are four (4) other Liquor establishments located in the immediate area. There is a 3.2% beer licensed establishment operated by the Shell Gas Station located directly to the east of this establishment. There is a retail Liquor Store named CJ's Liquor, across Hwy 119 to the north. To the south is a licensed Tavern, Vaquera's Night Club. 2015-0835 LC0052 REPORT OF INVESTIGATION - 7 -ELEVEN STORE #39510A PAGE 2 Lastly, there is a licensed Tavern establishment, Ole' Hickory Smokehouse and Tavern, to the north, across Hwy 119 at the Best Value Inn. The sign noticing the place, date, and time of the hearing for the liquor license application was posted by the applicant in such a manner that the notice was conspicuous and plainly visible to the public, when I was there at approximately 4:35 p.m. on March 19, 2015. 5. There are no public or parochial schools, or principal campus of any college, university, or seminary within 500 feet of the proposed licensed premises. Section 12-47-313(1)(d)(I), C.R.S. Additional comments: There were two employees on duty at the time of the inspection and both have worked for 7-11 for approximately 1 1/2 months. No manager was on site during the inspection. I spoke to the employees and inquired whether they had any training (TIPS or other training) for taking I.D.'s, etc., related to the sale of alcohol, and both indicated that they had not. I would recommend that all employees who will be selling alcohol, have TIPS training right away. Very truly yours, BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Julie A. Cozad, Commiser cc: Robert Frick, County Attorney Dill Dill Carr Stonebraker and Hutchings, PC Rebecca Spencer -Keith 455 Sherman St, Suite 300 Denver, CO 80203 LC0052 a N WW mw IL JN O ±Vc 0ZWLU Z Q o xOa2UQm O rat- x0 SU0 U GNCO O WS�WW�)W JO Q�F 0, 0�WWK DU _� N Z7 �i WJY7 Zp Cw O QQO OQ_ OZ� K»UZ=, OW2 OFN or N H D O >- H z w a 5 O w O U H Z O O Z O -J O O) CO CO 914 COLORADO HIGHWAY 19 Rafaela Martinez From: Rafaela Martinez Sent: Thursday, March 26, 2015 9:47 AM To: 'Rebecca Spencer' Subject: Report of Investigation Letter Attachments: 20150662 Report of Investigation - Letter.pdf Good Morning Rebecca, I wanted to let you know that I received the petition documents from Esquire this morning. Also, please find the attached letter from Commissioner Cozad regarding her on -site inspection of the premises. Please let me know if you have any questions or concerns. I will be in contact again soon with the Agenda for Monday, March 30, 2015 as well. Thank you, Rafaela a. Martinez Deputy Clerk to the Board 1150 O Street/P.O. Box 758/Greeley, CO 80632 tel: (970) 336-7215 X5226 5708 9929 m O 7004 2890 U.S. Postal ServiceTh, CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Sent To -1auQx1 S,k-o►t_t1 39510Ft Postmark Here Street, Apt. No.; or PO Box No. City, State, Z1P+4 cliq PS Form 3600. June 2002 III go5oLi See Reverse for Instructions rents or other writings are intended only for the person or entity to which it is addressed rotected from disclosure. If you have received this communication in error, please �. Any disclosure, copying, distribution or the taking of any action concerning the contents d recipient is strictly prohibited. 1 MEMORANDUM TO: Board of County Commissioners March 11, 2015 FROM: Rafaela A. Martinez, Deputy Clerk to the Board SUBJECT: Retail 3.2% Liquor License Application - Carpo LLC & 7 -Eleven Inc, dba 7 -Eleven Store #39510 Our office has received an application for a Retail 3.2% Liquor License from Carpo LLC & 7 - Eleven Inc, dba 7 -Eleven Store #39510, 3914 CO Hwy 119, Longmont, Colorado 80504. All application requirements have been met and all fees have been paid. Due to publication and posting requirements, I recommend the hearing be set for March 30, 2015, at 9:00 a.m. The neighborhood to be served for this license is as follows: Sections 2, 3, 4, 9, 10, 11, 14, 15, and 16 all in Township 2 North, Range 68 West of the 6th P.M., Weld County, Colorado NOTICE Pursuant to the liquor laws of the State of Colorado and the Weld County Code, a public hearing will be held 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, at the time specified. If a court reporter is desired, please advise the Clerk to the Board, in writing, at least five days prior to the hearing. The cost of engaging a court reporter shall be borne by the requesting party. In accordance with the Americans with Disabilities Act, if special accommodations are required in order for you to participate in this hearing, please contact the Clerk to the Board's Office at (970) 336-7215, Extension 5226, prior to the day of the hearing. The complete case file may be examined in the office of the Clerk to the Board of County Commissioners, Weld County Administration Building, 1150 0 Street, Greeley, Colorado 80631. Petitions and comments may be filed in the office of the Clerk to the Board of County Commissioners. E -Mail messages sent to an individual Commissioner may not be included in the case file. To ensure inclusion of your E -Mail correspondence into the case file, please send a copy to ramartinez@co.weld.co.us. DOCKET #: 2015-36 HEARING DATE: March 30, 2015 HEARING TIME: 9:00 a.m. APPLICANT: Carpco, LLC and 7 -Eleven, Inc. dba 7 -Eleven Store #39510 3914 State Highway 119 Longmont, CO 80504 DATE OF APPLICATION: February 13, 2015 REQUEST: To grant a retail 3.2% Liquor license in sealed containers not for consumption at place where sold. LEGAL DESCRIPTION OF NEIGHBORHOOD SERVED: Sections 2, 3, 4, 9, 10, 11, 14, 15, and 16 all in Township 2 North, Range 68 West of the 6th P.M., Weld County, Colorado BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO DATED: March 13, 2015 PUBLISHED: March 18, 2015, in the Greeley Tribune Affidavit of Publication NOTICE Pursuant to the hailer laws of the State r•1 Comrade and the Weld C: urty Cooe. a public nearing wit be held a1 Coe Chambers of We Beard of Courtly Commissioners of Weld County. Colorado, Weld County Admi3isratkvr Buiklu:g, 1 I50 O Street, Assembly Room. Gi every, Colorado 80631. al the lime speeded. If a court reporter is desired, please advise the Clerk to the Beard rn writing. at least tine clays prior to the nearing. The cost el engaging a court reporter shall be borne by the requesting puny In accordance with the Americans w'In Disabilities Act. it &real accommodatrns are required in order for you to partici- pte .n this hearrnu, please contact the C:r.•rk to the Board's Of. hoe at 1.9701335-7215. Extension 5225, prior to tiro day cl the Nearing. The complete paw tileplay be examinee in the Mice or the Clerk to the Board of County Cernmiss orera, Weld County Ad - ma istrarion Building, 1150 0 Strr-e:•:. Greeley. Colorado 8063t. - Petrtions and comments may ea trim2 in the office of the Clerk to the Board el County Commissioners. E•Maii messages sent to an rndr.rduat Commissioner nay riot be tnctuded in the case hie To c+ -sure Indus:G.1 al your E -Mail correepondunce into the case tile. case send a enryr to raniammazOco.weld.ce.ue. (JC_KET 7:. 5 'i6 -lbARlNG 047L +arch 33. 2C15 .4:APING Teri 3 04 a re A{n'. ICAN7 a.e. LLO Iin! Eleven. Inc. rr39510 3>r4 State H'Thr'vay TIP : o•igyr+' ,r1t CO 8(1304 DATE Cr- APPLICATION. February 13. 2015 REOUF5T To grant a retail 3.2°t. t iquor license in sealed con- tainers net tor rensunrotion at place where sold. LEGAL t)*SCHIPTtON or NEIGHBORHOOD SERVED: Sec - lions 2 3 + 9. 13. 11 14. 1$, and `f3 all 41 Township 2 North: ria,ge BB West of the stn P.M o County, Co orede BOARD OF COUNTY C:CNAMISSIONEFiS IJE1 U COUNTY, COLORADO I)4! Et). March 1:3. 2415 "+e tribune unit; STATE (%t•' COLORADO County of Weld. I Cassie ('larken 55. of said County of Weld, being duly sworn. say that I am an advertising clerk of' THE C;REELEY 'I'Rllil'NE, that the same is a daily newspaper of general circulation and printed and published in the City of Greeley, in said county and state; that the notice or advertisement, of which the annexed is a true copy, has been published in said daily newspaper for consecutive (days): that the notice was published in the regular and entire issue of every number of said newspaper during the period and time of publication of said notice, and in the newspaper proper and not in a supplement thereof: that the first publication of said notice was contained in the Eighteenth day of March A.D. 2015 and the last publication thereof: in the issue of said newspaper bearing the date of the Eighteenth day of March A.D. 2015 that said The (;reeley Tribune has been published continuously and uninterruptedly during the period of at least six months next prior to the first issue thereof contained said notice or advertisement above referred to; that said newspaper has been admitted to the United States mails as second-class matter under the provisions of the Act of March 3,1579, or any amendments thereof: and that said newspaper is a daily newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. March 18. 2015 Total ChatYes: $10.27 18th• _... day of March 2015 My Commission Expires 6114/2017 Zix Nutaly Public ROBERT LITTLE NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20014018494 MY COMMISSION EXPIRES JUNE 14, 2017 February 23, 2015 CLERK TO THE BOARD PHONE: (970) 336-7215, Ext. 5226 FAX: (970) 336-7233 1150 O STREET P. O. BOX 758 GREELEY, COLORADO 80632 Department of Revenue — Liquor Enforcement 1881 Pierce St. Division 108-A Lakewood, CO 80214 RE: Liquor License — Carpco, LLC and 7-11, Inc., dba 7-11 Store #39510 Concurrent Review — 3.2% Beer Off Premises License 3914 Highway 119, Longmont, CO 80504 To Whom it May Concern: Enclosed please find one (1) Original Copy of a New 3.2% Beer Off Premises License Application for 7-11 Store #39510 along with the associated State Liquor Fees in the amount of $882.50. The Law Firm that is assisting the Applicant is requesting a Concurrent Review of said application. The Weld County Board of Commissioners has a hearing date set for March 11, 2015, at which time I will provide you with an updated copy of our Resolution and findings. Please review this application and notify me of any inconsistencies within it so that we can amend as needed. If you have questions or need additional information, please do not hesitate to contact me at (970) 336-7215, Extension 5226. truly yours, ate, Rafe&la A. Martinez Deputy Clerk to the Board ramartinez@weldgov.com D i. Di I Cate 5-u.eearea a Huru_nus Direct Dial: 303-282-4130 Email: rspencer(gdillanddill.com February 19. 2015 455 Shermar.5r., Sure 300 Denver, Colorado 80203 303-///-/3/ 303-777-3823 FAX ..ww-cll andd.11. corn VIA FEDERAL EXPRESS Weld County Adminstration Bldg. Attn: Rafaela Martinez, Liquor Licensing Specialist 1150 O Street Greeley, CO 80631 Christopher W. Carr" Daniel W. Carr John J. Comes Kevin M. Coates H. Alan Dill Robert A. Dill Thomas M. Dunn John A. Hutchings Stephen M. Lee Fay M. Matsukage" Adam P Stapen Jon Stonbraker Craig A. Stoner Frank W. Suyat Patrick D. Tooley Ghislaine G. Torres Bruneir— Arthur H. Bosworth, II, of counsel „r �reiised rhrida RE: New 3.2% Beer Licenses/Carpco L.L.C. & 7 -Eleven, Inc. dba 7 -Eleven Store 39510B 3914 CO Hwy 119, Longmont, CO 80504 Replacement Check for State Fees Dear Rafaela: Pursuant to our telephone conference of February 19, 2015, enclosed please find a corrected state lee check from our firm in the amount of $867.50 for the above -referenced new license application. Further enclosed are two (2) copies of an amended page 1 to the DR 8403 form, reflecting the correct master file location fees. Please exchange these pages with the ones I originally submitted in the county and state application packets. Thank you for your consideration in this matter! I look forward to working with you on this licensing project! Very truly yours, Rebecca Spencer -Keith Paralegal RSK Encl./cc: our file 4398.586 D Lt D'L. CAPR S r^NBRAKIP N H.:rc-'ties V( D1R€CTDfAE:ti (303) 282-4130 February 16, 2015 455 Sre men St., Suite 300 D er�er, Coloruuo 80203 303-//7-373/ 303-777-3823 FAX 0w..\.. iudil _core VIA FEDERAL EXPRESS Tammy Waters, Liquor Clerk Weld County/Liquor Licensing - 915 10th St. Greeley, CO 80632 RE: New Application/Concurrent Review - 3.2% Beer Off Premises Licenses Carpco L.L.C. & 7 -Eleven, Inc. dba 7 -Eleven Store 39510A 3914 CO Hwy 119, Longmont, CO 80504 Dear Tammy: Christopher W. Carr* Daniel W. Carr John J. Coates Kevin M. Coates H. Alan Dill Robert A. Dill Thomas M. Dunn John A. Hutchings Stephen M. Lee Fay M. Matsukage" Adam P. Stapen Jon Stonbraker Craig A. Stoner Frank W. Suyat Patrick D. Tooley Ghislaine G. Torres Bruner"' Arthur H. Bosworth, II, of counsel We are the law firm assisting 7 -Eleven, Inc. with its Colorado liquor licensing matters. Enclosed please find the original and one (I) copy of a new 3.2% beer off premises license application to re -license an existing franchised store, along with the associated county and state fees. Please note that 7 -Eleven, Inc. is "master tiled" with State Liquor Enforcement. In addition, both J. David Carpenter and Jennifer Carpenter arc individually master filed. Therefore, all fingerprinting and background checks have been completed by the State. On behalf of our client, we respectfully request a Concurrent Review in this matter. A concurrent review letter has been included in this application for your convenience. Kindly review this application and notify me directly of any deficiencies, so that I can address them promptly. Thank you for your consideration in this matter. Should you have any questions, please do not hesitate to call me at 303-282-4130. Very truly yours, Rebecca Spencer -Keith, Paralegal RSK Encl./cc: our file 4398.586 DMA, PCDOCS DOCS 2 I 1.851, DR 8403 (12/30114) COLORADO DEPARTMENT OF REVENUE Liquor Enforcement Division (303) 205-2300 Colorado Fermented Malt Beverage (3.2% Beer) License Application al New License E New -Concurrent Q Transfer of Ownership • All answers must be printed in black Ink or typewritten • Applicant must check the appropriate box(es) • Local license fee $ 7.50 (county) • Applicant should obtain a copy of the Colorado Liquor and Beer Code: www.colorado.gov/enforcementAiiquor 1. ❑ • Applicant is applying as a/an Corporation ❑ Partnership (includes Limited Liability and Husband and Wife Partnerships) Individual O Limited Liability Company ® Association or Other JOINT LICENSE 2. Apelicent(s) If an LLC, name of LLC: if partnership, at least 2 partners' names; if corporation, name of corporation Carpco L.L.C. & 7 -Eleven, Inc. FEIN 45-1271103 2a. Trade Name of Establishment (DBA) 7 -Eleven Store 39510A State Sales Tax No. 4296171-0005 Business Telephone 303-774-7668 3. Address of Premises (seedy exact location of premises) 3914 CO Hwy 119 City Longmont County Weld State CO ZIP Code 80504 4. Mailing Address (Number and Street) Attn: 7 -Eleven Licensing, PO Box 219088 City or Town Dallas State TX ZIP Code 75221 5. Email Address cherylswinford@7-11.com 6. If the premises currently has a liquor or beer license, you MUST answer the following questions Present Trade Name of Establishment (DBA) None Present State License No. N/A Present Class of License N/A Present Expiration Date N/A Section A Nonrefundable Application Fen Section B 3.2% Beer License Fees • ® ❑ Application Fee for New License 5600.00 Application Fee for New License - vv/Concurrent Review $700.(x) Application Fee for Transfer $600.00 ❑ • ❑ © ❑ ❑ E Retail 3.2% Beer On -Premises (City) $96.25 Retail 3.2% Beer On -Premises (County) $117.50 Retail 9.2% Beer Of -Premises (City) $9625 Retail 3.2% Beer Off -Premises (County) $117.50 Retail 3.2% Beer ONOf Premises (City) $96.25 Retail 3.2% Beer On/Of Premises (County) $117.50 Master Flle Location Fee $25.00 x 2 To $50.00 ■ Master File Background $250.00 x Total •7 -Eleven Inc. & Carpco L.L.C. (J. David CarpenterTfer Carpenter) Questions? Visit www.colorado.goWen/ rcemengyuor for 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 5 0)6—btate2 LtOOSC 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 ❑x A. Applicant/Licensee identified El B. State sales tax license number listed or applied for at time of application 12 C. License type or other transaction identified © D. Submit originals to local authority 12 E. Additional information may be required by the local licensing authority II. Diagram of the Premises 11 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) © 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 ❑X 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 arraptance by the Applicant 12 D. Other Agreement if not deed or lease (attach prior lease to show right to assumption) Franchise Agreement IV. Background Information and Financial Documents 12 A. Individual History Record(s) (Form DR 8404-I) © B. Fingerprints taken and submitted to local authority. (State authority for master file applicants.) ❑ C. Purchase agreement, stock transfer agreement, and or authorization to transfer license • D. List of all notes and loans. V. Sole Proprietor/Husband and Wife Partnership • A. Form DR 4679 • B. Copy of State Issued Driver's License or Identification Card for each Applicant VI. Corporate Applicant Information (If Applicable) 7 -Eleven, Inc. (state master filed) © A. Certificate of Incorporation (and/or) © B. Certificate of Good Standing 13 C. Certificate of Authorization if foreign corporation 13 D. List of officers, directors and stockholders of parent corporation (designate one person as "principal officer") VII. Partnership Applicant Information (If Applicable) • A. Partnership Agreement (general or limited). Not needed if husband and wife • B. Certificate of Good Standing (if formed after 2009) VIII. Limited Liability Company Applicant Information (If Applicable) Carpco L.L.C (individual master filed) © A. Copy of articles of organization (date stamped by Colorado Secretary of State's Office) © B Certificate of Good Standing if organized more than two years © C. Copy of operating agreement 12 D. Certificate of Authority (if foreign company) 2 7. Is the applicant (including any of the partners, if a partnership; members or manager if a limited liability company; or officers, stockholders or directors if a corporation) or manager under the age of twenty-one years? Yes No CI 7 8. Has the applicant (including any of the partners, if a partnership; members or manager if a limited liability company; or officers, stockholders or directors if a corporation) or manager ever (in Colorado or any other state): (a)been denied an 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 Please see attached 9. Has a 3.2 beer license for the premises to be licensed been denied within the preceding one year? If "yes," explain in detail. F. B 10. Has a liquor or beer license ever been issued to the applicant (Including any of the partners, if a partnership; members or See att. manager if a limited liability company; or officers, stockholders or directors if a corporation)? If yes, identify the name of the business and list any current or former financial interest in said business including any loans to or from a licensee. Cxl fT 11. Does the Applicant, as listed on line 2 of this application, have legal possession of the premises by virtue of ownership, lease or other arrangement? El Ownership ❑ Lease n Other (Explain in Detail) Lease Assignment & Franchise Agreement O FT n fl E 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. Tenant Carpco L.L.C. rI D1 Expires 08/24/20 b. Is a percentage of alcohol sales included as compensation to the landlord? If yes complete question 12. ❑ c. Attach a diagram and outline or designate the area to be licensed (including dimensions) which shows the bars, brewery, walls, partitions, entrances, exits and what each room shall be utilized for in this business. This diagram should be no larger than 8 1/2" X 11". 12. Who, besides the owners listed in this application (including persons, firms, partnerships, corporations, limited liability companies), will loan or give money, inventory, furniture or equipment to or for use in this business; or who will receive money from this business. Attach a separate sheet if necessary. Last Name None Last Name First Name N/A First Name Date of Birth N/A Date of Birth FEIN or SSN N/A FEIN or SSN Interest N/A 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 proft or gross proceeds of this establishment, and any agreement relating to the business which is contingent or conditional in any way by volume, profit, sales, giving of advice or consultation. 13.Name of Manager for all on and onfoff applicants. Last Name N/A - off premises license 14. 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 15. Tax Distraint Information. Does the applicant or any other person listed on this application and including its partners, officers, directors, stockholders, members (LLC) or managing members (LLC) and any other persons with a 10% or greater Financial interest In the applicant currently have an outstanding tax distraint issued to them by the Colorado Department of Revenue? If yes, provide an explanation and include copies of any payment agreements. First Name N/A Date of Birth N/A ❑ D 3 16. "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% of more In the applicant. All persons listed below must also attach form DR8404-I (Individual History Record), and submit fingerprint cards to their local licensing authority. Name Joseph David Carpenter, 111* Home Address, City & State 1126 Burr Oaks Dr.. West Des Moines, IA 50322 Date of Birth Position Mgr/Mbr % Owned 80% Name Jennifer Carpenter* Home Address, City & State 1126 Burr Oaks Dr., West Des Moines, IA 50322 Date of Birth Position Member % Owned 20% Name *Individual Master Filed - see attached Home Address, City & State Date of Birth Position % Owned Name 7 -Eleven, Inc.** Home Address, City & State 1722 Routh St., #1000, Dallas, TX 75201 Date of Birth N/A Position Franchisor % Owned 100% Name *Master Filed - see attached Home Address, City & State Date of Birth Position % Owned ** Limited Liability Companies and Partnerships - 100% of ownership must be accounted for on question #16 •. Corporations - The President, Vice -President, Secretary and Treasurer must be accounted for on question #16 (Include ownership percentage if applicable) Oath of Applicant I declare under penalty of perjury in the second degree that this application and all attachments are true, correct, and complete to the best of my knowledge. I also acknowledge that it is my responsibility and the responsibility of my agents and employees to comply with the provisions of the Colorado Liquor or Beer Code which affect my license. A �' " d Signature Printed Name and Title Manager/Member, Carpco L.L.C. Date //5 ,..7 and Approval of Local Licensing Authority (City/County) Date application filed with local authority Date Date of local authority hearing (for new license applicants cannot be less than 30 days from date of application 12-47-311 (1) C.R.S.) Each person required to file DR 8404-I has including NCIC/CCIC check for outstanding warrants conduct, an inspection of the proposed premises to ensure class of license. -AY)-R-Arl 1 q, l5' that the applicant is in compliance with, • Been fingerprinted -Been subject to background investigation. That the local authority has conducted, or intends to and aware of, liquor code provisions affecting their (Check One) lig Date of Inspection or Anticipated Date • Upon approval of state licensing authority The foregoing application has been examined; and the premises, business to be conducted, and character of the applicant are satisfactory. We do report that such license, if granted, will meet the reasonable requirements of the neighborhood and the desires of the adult inhabitants, and will comply with the provisions of Title 12, Article 46 or 47, C.R.S. Therefore, this application is approved. Local Licensing Authority for Weld Count B.a• • .un-, '•i- Telephone Number • �_ •_ 0 Town, City It. County Si. •r:ture Printed Name Barbara Kirkme er Title Chair pau. LIAR 3 0 2015 ignature (a - ! ,r�J^- Name - Gesick Title Clerk to the Board Dat WAR 3 0 2015 4 (O ASSIGNMENT OF GROUND LEASE THIS ASSIGNMENT OF GROUND LEASE (this "Assignment"), dated as of the 07'71.7`A 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, 2011, as subsequently amended, demising certain real property located in unincorporated Weld County, Colorado, having an address of 3914 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 interests. 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 of page intentionally left blank] 009110.3 rr 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 Dave Carpenter, Presiden ASSIGNEE: CARPCO, L.L.C., an Iowa limited liability company B 0O9210.5 2 Dave Carpen't€, President ATTACHMENT TO COLORADO 3.2% BEER LICENSE APPLICATION CARPCO, L.L.C. & 7 -ELEVEN, INC. DBA 7 -ELEVEN STORE 39510A RE: QUESTION #8/SUSPENSIONS, DENIALS, REVOCATIONS QUESTION #8: Carpco, L.L.C.: Joseph David Carpenter III and Jennifer Carpenter, sole Members of Carpco, L.L.C., the joint applicant and franchisee, have never been denied an alcoholic beverage license, nor has either of them ever had an alcohol beverage license suspended or revoked. 7- Eleven, Inc. Please see the attached list of suspensions for 7 -Eleven, Inc. (last 3 years, Colorado) 7 -Eleven, Inc. Suspensions (Last 3 years - Colorado Only) STORE a=s CITY/COUNTf:l.''` ALDATE,e DISGIPLINARYACTIQN '"° 39034(A) Englewood Sale to minor 02/23/12 4 day suspension; 4 days held in abeyance for one year and $300 fine. Training required within 60 days. 17142 ,Loveland Sale to minor 04/14/12 15 day suspension; 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension, $200. 39296C Thornton Sale to minor 04/19/12 10 day suspension; 3 days served; 7 days held in abeyance for one year. 25740A Aurora Sale to minor 06/21/12 14 day suspension; 11 days held in abeyance for one year; 3 days served with fine in lieu of suspension, $200 20104A Fort Collins Sale to minor 09/06/12 15 day suspension; 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension, $200. 39034A Englewood Sale to minor 11/28/12 11 day suspension; 4 days served ( + 4 days from prior violation), 7 days held in abeyance for a period of one year; fine paid in lieu of 4 days suspension from prior violation, $500 32747B Colorado Springs ' Sale to minor 10/25/12 12/12/12 7 day suspension; 7 days held in abeyance for a period of one year. Proof of training required within 60 days. 32159C Colorado Springs Sale to minor 06/20/13 :$200 15 day suspension; 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension, (state violation) 32809A I Westminster Sale to minor_ 'abeyance 06/26/13 14 day suspension; 2 days served; 12 days held in fo ra period of 2 years; Training required by 10/31/13. 21967A Colorado Springs Sale to minor 07/03/13 15 day suspension, 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension $200 (state violation) 18324 _1Yuma Sale to minor 09/21/13 11 day suspension, 7 days held in abeyance for one year; 4 days served with fine in lieu of suspension $200 (state violation) 39451A Mead Sale to minor 1.2/05/13 15 day suspension, 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension 5200 (state violation) 19676 Colorado Springs Sale to minor 12/17/13 15 day suspension, 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension $200 (state violation) 25740B Aurora Sale to minor 12/18/13 15 day suspension, 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension $200 (state violation) 18409A Aurora Sale to minor 'year; 12/19/13 f5 day suspension, 10 clays held in abeyance orone 5 days served with fine in lieu of suspension $200 (state violation) 35336A Broomfield Sale to minor 12/20/13 7 day suspension, 4 days held in abeyance for one year, 3 days served with fine in lieu of suspension $200; Training Completed. 24398A Colorado Springs Sale to minor 02/27/14 15 day suspension, 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension $200 (state violation) Excel#167539 1 2/13/2015 7 -Eleven, Inc. Suspensions (Last 3 years - Colorado Only) STORE CITY/COUNTY::. JTYPE .• :l "DATE-- DISCIPLINARY ACTION, 19583 Glenwood Springs Sale to minor I 04/27/14 06/14/14 15 day suspension, 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension $200 (state violation) 34210B 13184A Firestone Sale to minor 15 day suspension, 10 days held in abeyance for one year; 5 days served with fine in lieu of suspension $200 (state violation) Longmont Sale to minor 14 day suspension, fine paid in lieu of 14 day 08/07/14 suspension ($200) 33040A Douglas County Sale to visibly intoxicated person 08/30/14 15 day suspension, 12 days held in abeyance for oen year; 3 days served. 39081B Windsor Sale to Minor 10/10/14 5 day suspension, 5 days served, 0 days held in abeyance 20104A 'Fort Collins Sale to Minor 10/30/14 14 day suspension, 9 days held in abeyance for one year, 5 days served with fine in lieu of suspension ($200); Training required by 2/2/15. Excel#167539 2 2/13/2015 ATTACHMENT COLORADO 3.2% BEER LICENSE APPLICATION CARPCO L.L.C. & 7 -ELEVEN, INC. D/B/A 7 -ELEVEN STORE 39510A RE: QUESTION #10/INTERESTS QUESTION #10: Carpco L.L.C.: Joseph David Carpenter III and Jennifer Carpenter are individually "master filed" with the Colorado Department of Revenue Liquor Enforcement Division, and, as Members of Carpco L.L.C., currently have an interest in the following 3.2% beer off premises licenses in the State of Colorado: Licensee Trade Name Address 7 -Eleven, Inc. & Cameo, L.L.C. 7 -Eleven Store 39519A 7486 Westgate Windsor, CO 80528 7 -Eleven, Inc. & Carpco, L.L.C. 7 -Eleven Store 39528A 16310 E. Quincy Ave. Aurora, CO 80015 Carpco, L.L.C. & 7 -Eleven, Inc. 7 -Eleven Store 39622A 15296 E. Hampden Ave. Aurora, CO 80014 Carpco, L.L.C. & 7 -Eleven, Inc. 7 -Eleven Store 39591A 9355 E. Dry Creek Rd. Centennial, CO 80112 Carpco L.L.C. previously held 3.2% beer off premises licenses jointly with 7 -Eleven, Inc. for 7 - Eleven Store 39510A, 3914 CO Hwy 119, Longmont, CO 80504, however through an oversight of the licensees, those licenses expired in May 23, 2014. This application is to re -license that location for 3.2% beer. 7- Eleven, Inc.: 7 -Eleven, Inc., franchisor and joint applicant, currently has an interest in numerous 7 -Eleven outlets in the State of Colorado, several of which are licensed for 3.2% Beer. Please refer to the attached Colorado Store List. 7 -Eleven, Inc. Store List ,;':. STORE; �..v X -v k 3 ADDRESS>> t' +�e"23'�-s'$�t' CITY - = ST � : S:' xZIP' ' A� Y•',z--+X OD. 'f —`w .a v'PNONE 13058 312 Mountview Lane 'Colorado Springs CO 80907 719 590-7683 13071 5 Widefield Avenue Widefield ICO 80911 719 390-6873 13079 1011 S. 21st Street Colorado Sprin s 1CO 80904 719 635-0183 13082 310 W. Uintah Colorado S rin s 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. I Pueblo CO 81005 719 564-3325 13128 9101 W. Jewell (Garrison) Lakewood CO 80226 303 989-1956 13140 5405 Marshall Street Arvada 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 303_ 651-2417 13185 830 16th Greeley CO _-80501 80631 970 352-5150 13188 11421 Washington North lenn CO 80233 303 452-6093 13194 1107 Santa Fe Drive Denver ICO 80204 303 825-6360 13195 4040 E. 8th Avenue (Albion] Denver jCO 80206 303 322-2237 13196 1277 E. Hampden Englewood CO 80110 303 781-7074 13197 1645 E. 17th Avenue (Gilpini Denver CO 80210 303 321-7301 13198 607 E. Alameda (Pearl) Denver CO 80209 303 777-2151 13203 7675 E. Colfax (Syracuse) Denver CO- 80220 ' 303 399-5059 13204 — ' 10201 Montview Blvd. LGalenaL 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 80210 303 303 837-1391 871-9013 13213 567 E. Louisiana (Pearl) Denver CO 13224 7560 S. University (Dry Creek) Englewood CO 80110 303 796-0890 15041 311 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 970 867-3726 15403 1605 W. 92nd Avenue ,Federal Heights CO 80221 303 I 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 (Wolfer Denver CO 80204 303 595-8114 15955 '620 Edison _ Brush 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 CO 80211 303 ' 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 9200 W. Alameda [Garrison) Lakewood CO 80225 303 989-8831 17142 2081 W. Eisenhower (Estrella) Loveland CO 80537 970 663-2693 17211 51315 U.S. Highway 6 & 24 Glenwood Springs COI 81601 970 945-6026 Doc #136256 2/13/2015 7 -Eleven, Inc. Store List STORE ADDRESS GITIf" . ST.. ZIP.' CODE =PHONE` 17284 1741 North Summit Blvd. Frisco CO 80443 970 668-3941 17299 8390 West 14th Ave. (Carr) Lakewood CO 80215 303 232-3647 17596 10722 E. Alameda (Ironton) Aurora CO 80012 303 ' 341-0346 17711 17881 W. Colfax Golden 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 7355 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 AvejColorado) Thornton CO 80229 303 452-6862 18589 511 Agate Avenue Granby CO 80446 970 1887-3105 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 (Steel) Denver CO 80206 303 322-2357 18739 7 711 Washington Golden CO 80401 303 279-8388 18999 3877 Astrozon Blvd. Colorado Springs CO 80916 1 719 390-8125 19015 4096 S. Federal (Oxford) Sheridan CO 80110 303 789-5306 19088 1011 37th Street 'Evans 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 303 429-6778 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 Walsenbur CO 81089 719 738-1156 19948 1707 17th/Walnut Street Boulder CO 80302 303 443-4329 20104 429 Remington Fort Collins CO 80521 970 493-9263 20182 11499 W. Littleton Blvd. Littleton CO 80120 303 795-2753 20308 Highway 105 Monument CO 80132 719 481-2497 1283 20332 4401 S. Tamarac Pkwy. (I225) Denver CO 80237 303 796-9685 20343 2407 N. Union Blvd. Colorado Springs ICO 80909 719 635-0180 20638 '804 _ East 4th Street Pueblo CO 81004 719 543-7265 20909 16980 E. Iliff (Buckley) Aurora CO 80014 303 337-7571 21242 6515 South Dayton (Peakview) Greenwood Village CO 80111 303 790-0230 21367 11540 East Highway 50 Salida CO 81201 719 539-3670 21493 15553 E. Mississippi (Chambers) Aurora CO 80012 303 I 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 303 433-3293 21938 4085 E. Mississippi (Colorado) Denver CO 80222 303 759-8324 21967 ,1475 B Street (Lashelle) Colorado Springs CO j 80906 719 576-2615 22021 23250 Highway 82 Basalt CO 81621 970 927-3827 22059 525 North Union Blvd. Colorado Springs CO 80909 719 635-1104 22063 111599 W. Colfax Lakewood CO 80215 303 237-8643 Doc #136256 2/13/2015 7 -Eleven, Inc. Store List STORE ADDRESS _, _ : CITYS' ST .== ZIP-, ? AREA CODE a".PHONE 22088 1329 Main Street Carbondale CO 81623 970 963-0423 22194 14490 E. Colfax (Sable) IAurora CO 80011 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 CO- 80904 719 635-0142 22684 1428 West Colorado Ave. (15th) I Colorado Springs CO 80904 719 578-5397 22706 601 South Santa Fe Ave. Fountain CO 80817 719 382-5156 23154 '13790 E. Quincy (Parker) Aurora CO 80013 I 303 690-6088 23172 303 North Broadway Denver CO T 80203 303 722-4960 23206 7211 Pecos (Hwy. 36) I Westminster CO 80221 303 430-1146 23293 1800 Downing Denver CO 80203 303 830-2516 23418 10500 E. Colfax (Havana) - Aurora CO 80010 303 x343-3456 23519 2324 23rd Avenue Greeley CO 80631 971 1356-7074 23546 1402 Harrison (Rand) Colorado Springs CO 80906 719 576-4052 23603 1105 Knox Court Denver CO 80219 303 936-4356 23664 12396 South Federal (Wesley) ,Denver CO 80219 ' 303 935-9339 23727 750 South Monaco (Leetsdale) Denver CO 80224 303 394-3016 23731 , 328 East Platte (Wahsatch) ! Colorado Springs CO _ 80909 719 634-4066 23811 1327 West 8th Street Pueblo CO 81001 719 542-6271 23829 !6302 East 72nd Ave. (Hwy. 2) Commerce Ci CO 80022 303 287-8035 23867 1499 South Federal (Florida) Denver CO 80219 303 937-0667 23888 1702 South 8th (Arcturus) Colorado S rin s CO 80906 719 635-0303 23899 85 W. Alameda (Bannock) Denver CO 80223 303 698-2285 23905 1000 EColfax (Ogden) Denver CO ! 80218 303 831-0270 23935 ,201 3805 Pikes Peak (Academy) Colorado Springs CO 80916 719 597-9986 23963 Blue River Parkway Silverthorne CO 80498 970 468-8537 23990 1795 North Peoria Aurora CO 80010 303 ! 363-7333 24079 8250 West Coal Mine, Unit A Littleton CO 80123 303 979-0650 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 3306 East Fountain (Chelton) Colorado Springs CO 80910 719 597-8235 24438 1995 North Circle Drive (Galley) Colorado Springs 'CO _ 80909 719 570-6240 24460 510 S. Security Blvd. (Main) Security CO 80911 719 390-6007 24627 580 Josephine Denver CO 80206 303 377-7237 24732 1580 Colorado Blvd. Denver CO 80220 303 377-0052 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 CO 80219 303 936-1412 25069 4708 Washington Street Denver CO 80216 303 292-6024 25187 595 Havana Aurora CO 80010 i 303 340-8300 25265 201 W. Fillmore St. Colorado Springs CO 80907 719 634-3451 25290 4543 Boardwalk (Harmony) ' Fort Collins CO 80521 970 223-4197 25325 4057 Pecos Street Westminster CO 80030 303 452-9271 25476 1650 Main Street Longmont CO 80501 I 303 651-2930 25550 112880 Albrook (Tulsa) ;Denver - CO 80239 303 373-1785 Doc #136256 2/13/2015 7 -Eleven, Inc. Store List STORE ADDRESS :' r ; CI SW ZIP" CODE 'PHONE 25581 16400 S. Golden Rd. (Quaker) Golden 1CO 80401 303 X279-0466 25582 1103 Yosemite Denver _ CO 80220 303 321-2042 25674 981 S. Union Blvd. (Fountain) Colorado Springs CO 80906 719 633-0573 25684 2540 10th Street Greeley CO 80631 970 356-2779 25718 '2220 South Peoria (Iliff) Aurora CO 80014 303 671-5940 25740 18883 E. Hampden (Tower) Aurora CO 80013 303 693-9445 25794 1685 Jet Wing Drive (Fountain) Colorado Springs CO j 80916 719 597-3338 25823 7201 Lowell Blvd. Westminster CO 80030 303 426-4936 25884 1990 Youngfield 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 l 528-5115 26137 95 Sheridan (First) Lakewood CO 80226 303 1232-1229 26289 2500 E. 88th (Devonshire) Thornton CO 80229 303 289-7432 26292 825 N. Nevada (Cache LaPoudre) Colorado Springs CO 80903 719 1520-9767 262951426 N. Academy (Palmer Park) Colorado Springs CO i 80909 719 597-6745 26574 13190 E. Mississippi (Uvalda) Aurora CO 80012 _ 303 745-5833 26644 1801 E. Platte Avenue (Union) Colorado Springs CO 80909 719 630-1084 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 3740 Randall Drive (Woodmannn Colorado Springs CO 80918 719 599-0232 26788 503 S. Nevada (Cimarron) ,Colorado S rin s 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 80229 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 3990 E. 35th Avenue (Colorado) Denver CO 80205 303 322-0825 27082 450 N.Murray (Platte) Colorado Springs CO 80916 719 574-5454 27094 105 37th Avenue (Hwy. 287) 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) 1 - Aurora ,CO 80015 303 690-8810 27238 r8378 North Sheridan A84th) Westminster CO 80030 303 426-6308 27275 405 Woodmen (Rockrimmon) Colorado Springs 1CO 80919 719 528-1342 27429 1850 South Sheridan, Unit A Denver CO _ 80226 303 936-5391 27492 1670 East 47th Ave. (Brighton) Denver CO 80216 303 297-8154 27620 303 North Santa Fe Denver CO 80223 303 893-2908 29024 880 South Buckley (Kentucky) Aurora CO ' 80012 303 755-8978 29108 4701 Peoria Street (Paris) Denver CO 80239 303 371-0933 29151 2299 W. Alameda ' Denver CO 80223 303 733-5238 29203 1000 Federal Blvd. Denver CO 80204 303 629-5611 29314 110410 Melody Drive _ Northglenn _ _ CO 80234 303 252-7505 29420 1301 West 38th Avenue Denver CO 80211 303 477-8708 295.0.8 3131 S. Broadway (Dartmouth) Englewood CO 80209 303 761-4531 32159 623 Garden of Gods Rd. �ColoradoSprings CO 80907 719 262-0270 32267 10992 State Hwy 9 Breckenridge CO x80424 970 547-4786 32276 6600 S. College Avenue Fort Collins CO 80525 ' 970 t 206-1704 32386 4710 Centennial Blvd Colorado Springs CO ' 80919 719 `266-9623 Doc#136256 2/13/2015 7 -Eleven, Inc. Store List STORE 14RORESS.""'f, ._ r, ._ CITY --,M ST - ZIP..CODE PHONE 32646 '4605 Austin Bluffs Parkway Colorado Springs CO 80918 719 573-9759 32673 1446 N. 95th Street Lafayette 'CO 80026 x303 665-4250 32747 6025 Constitution Avenue Colorado Springs CO 80915 719 638-1290 32809 10128 N Wadsworth - 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 CO 80017 303 750-1689 33040 8380 S. Colorado Blvd. Highlands Ranch CO 80126 303 770-4558 33041 11237 Southgate Place tPueblo CO 81004 719 561-2755 33042 8750 S Yosemite St Lone Tree CO 80124 720 874-0901 33043 7725 Fountain Mesa Rd Fountain CO 80817 _ 719 392-1229 33044 14250 E. Iliff Avenue / Blackhawk Aurora CO 80014 303 873-0415 33052 1595 W. 47th Avenue Denver CO 80211 303 .561-4974 33322 '5590 Power Center Point 'Colorado Springs 'CO 80921 719 282-9141 33481 399 N. Washington Avenue Golden ICO ' 80403 303 216-9163 33630 820 16th SU Suite 100 Denver CO 80202 303 893-1562 33710 6040 Barnes Road Colorado Springs CO 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 j 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 4 485-2939 34238 - 50 Telep Avenue _ _ Johnstown CO 80534 303 1740-9333_ 34316 6150 E. Hwy 34 Johnstown CO 80534 303 740-9333 34330 3810 Federal Blvd Denver _ CO 80211 303 I 740-9333 34333 3995 N. Lewiston, Ste 106 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 D/26 Champa St. ' Denver CO 80202 ' 303 740-9333 34486 '3099 West Mineral Ave Littleton CO 80120 I 303 740-9333 _ 34504 7451 S. Gartrell Rd. Aurora CO 80016 972 1828-7656 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 2295 S. Chambers Rd., Ste. O Aurora CO 80014 303 740-9333 34741 '7080 Tower Rd. Denver CO _ 80249 303 J740-9333 -__ 34921 ,2350 Hancock Expressway Colorado Springs CO 80910 972 ,828-7656 Doc #136256 2/13/2015 7 -Eleven, Inc. Store List STORE ADDRESS .. ' „ .. CITY : SI ZIP = AREA CODE - ~ PHONE 34924 2803 W. 10th Greeley CO 80631 303 740-9333 35001 2802 E. Fountain Blvd. Colorado Springs CO 80910 972 8 828-7656 35053 3992 Havana St. Denver CO_ 80239 303 371-9312 35069 1091 13th St. Boulder CO 80302 972 828-7656 35336 12802 Lowell Blvd. Broomfield CO 80020 972 ' 828-7656 35337 2825 Briargate Blvd. Colorado Springs CO 80920 972 828-7656 35338 ,330 S. Academy Blvd. Colorado Springs CO 80910 972 '', 828-7656 35345 1,2250 Mountain View Ave Longmont CO 80501 972 828-7656 35357 ,5190 W. 113th Avenue _ Westminster CO 80030 972 828-7656 35365 380 E. 17th Ave. Denver CO 80203 303 740-9333 35503 1550 Court PL Denver CO 80202 972 828-7656 35506 3045 W. Prospect Rd. Fort Collins CO 80526 970 221-8551 35511 4990 E. Hampden Ave. Denver CO 80222 972 828-7656 35519 4406 Sheridan Blvd. Denver CO 80212 303 422-1263 35534 5280 Astrozon Blvd. Colorado Springs CO 80916 972 828-6586 35536 450 Federal Blvd. Thenver 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 972 828-7656 35610 7692 Barnes Rd. Colorado Springs CO 80922 719 574-1557 35622 6630 S. Yosemite St. Greenwood Village CO 80111 972 828-7656 35668 3445 W. Colfax Ave. Denver CO 80204 303 573-3851 35689 1450 S. Santa Fe Dr. Denver CO 80223 972 828-7656 35708 4277 Taft Ave. Loveland CO 80538 970 663-9097 35712 112 W. Magnolia St. Fort Collins CO 80524 972 828-6586 35715 3876 E. Bromley Ln. Brighton CO 80601 303 659-0376 35717 6400 Crossroads Blvd. Windsor CO 80550 972 828-6586 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 970 828-6586 35880 11401 W. Elizabeth St. Fort Collins CO 80521 970 493-0524 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. I Henderson CO 80640 303 227-4930 36017 4900 E. Bridge St. Brighton CO 80601 972 j 828-6586 36019 1800 Welton St. !Denver CO 80202 972 828-6586 36464 '8111 Tower Rd. Commerce City CO 80022 972 828-6586 36492 5995 W. 38th Ave. Wheat Ridge 'CO 80212 ! 972 828-6586 36697 5090 Federal Blvd. Denver CO 80221 303 433-3203 36764 ,8090 Meridian Rd. Peyton (Falcon) CO , 80831 972 828-6586 36769 1510 S. Holly St. Denver CO 80222 972 828-6586 36775 5797 Quebec St. Commerce City CO 80022 972 828-6586 36956 18351 E. Colfax Ave. Aurora _ ,CO 80011 303 343-1909 37010 J2363 E. Evans Ave. Denver CO 80210 303 722-1222 37016 .14922 Willow St. Denver CO 80238 972 ,828-6586 37120 3200 Chambers Rd. Aurora CO 80011 972 828-6586 37141 ,4855 Pecos St. Denver CO 80221 972 828-6586 39033 1120 Blue River Parkway - Silverthorne JCO 80498 970 468-7505 39034 '4601 S. Santa Fe Englewood CO 80110 303 761-4068 39035 6725 Wadsworth Blvd _ Arvada COj 80003 303 431-8088 Doc #136256 2/13/2015 7 -Eleven, Inc. Store List STORE ADDRESS = _ - CITaF` ST - - ZIP r AiEA , CODE..: sr PHONE 39036 3636 - 23rd Ave. Evans CO 80620 970 330-1400 39062 3190 W. 38th Ave. Denver CO 80211 303 455-2310 39074 4695 W. 20th Street Greer CO 80631 970 506-1430 39075 L1401 9th St Greeley CO 80631 970 356-2618 39076 2024 Bighorn Rd i Ft. Collins CO 80525 970 204-1887 39077 1000 35th Ave Greeley CO 80634 970 356-2618 39078 1100 Broad Street Milliken 'CO 80543 970 587-2333 39079 200 N. Taft Hill Rd. Ft. Collins CO 80521 970 482-3279 39080 1032 West Mountain Ave Ft. Collins CO 180521 970 407-7306 39081 629 Main Street ,Windsor CO 80550 970 686-5159 39081 629 Main Street Windsor CO 80550 970 686-5159 39082 1509 E. Eisenhower Blvd Loveland CO 80537 970 667-1735 39169 221 South 8th St Colorado S rin s CO 80907 303 740-9333 39211 810 Wilcox Street _- Castle Rock CO 80104 303 814-2359 39274 495 Sheridan Blvd. Lakewood CO 80226 720 283-6776 39296 8830 N. Colorado Blvd. Thornton CO 80029 303 287-2272 39317 3520 Town Center Dr., Unit A H Hi hlands Ranch CO 80129 303 740-9333 39339 L1810 Main St. Secures 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 39450 3 N Tejon St Colorado Springs CO 80903 719 471-0243 39451 4301 State HWY 66 Longmont CO 80504 970 535-4606 39459 408 Garden of the Gods Rd. Colorado Springs CO 80907 303 740-9333 39472 4325 S. Carefree Cir. Colorado Springs CO 80917 3 303 740-9333 39501 }10815 W. Jewell Ave., Unit A Lakewood CO 80232 303 980-8590 39504 4351 S. Tamarac Pkwy Denver CO 80237 303 220-1404 39510 3914 Colorado Highway 119 Longmont 'CO 80504 303 774-7668 39519 7486 Westgate 'Windsor CO 80528 970 223-5554 39528 16310 E. Quincy Aurora CO 80015 720 870-1194 39532 15550 E. Broncos Pkway Centennial CO 80112 303 799-6811 39533 4690 S. Yosemite St Unit B Greenwood Vill CO 80111 720 489-2499 39543 1901 N. Academy Blvd Colorado Springs CO 80909 719 596-4674 39591 9355 E. Dry Creek Rd Centennial CO 80112 303 221-1622 39622 15296 E. Hampton Ave Aurora CO 80014 303 766-0058 39662 3060 S. Havana St Aurora CO 80014 303 752-4440 39706 ,401 16th St. Denver CO 80202 972 828-6586 39729 2299 S. Havana St. Aurora 'CO 80012 303 750-9982 39730 1110 S. Pierce St. Lakewood CO 80232 303 901-9179 39731 19100 W. Ken Caryl Ave. Littleton COI80.1.28 3.03 979-1714 39732 13690 E. Alameda Ave. Aurora CO 80012 303 360-8624 39733 '9010 Park Meadows Dr. Lone Tree CO 80124 303 I 649-1862 Doc #136256 2/13/2015 ATTACHMENT TO COLORADO 3.2% BEER LICENSE APPLICATION CARPCO, L.L.C. & 7 -ELEVEN, INC. DBA 7 -ELEVEN STORE 39510A RE: QUESTION #16/OWNERSHIP QUESTION #16: Carpco L.L.C.: Joseph David Carpenter III and Jennifer Carpenter, Members of Carpco, L.L.C.., the franchisee and joint applicant in this venture, are submitting this application as a Limited Liability Company with 100% ownership. 7- Eleven, Inc.: 7 -Eleven, Inc., formerly known as Southland Corporation, is a Texas Corporation authorized to do business in Colorado. Please see the attached list of officers and directors. 7 -Eleven, Inc. currently has a master file with the Colorado Department of Revenue Liquor Enforcement Division (master file letter enclosed herein). As this is a joint license application, 7 -Eleven, Inc. is also deemed to have 100% ownership. 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 Officers: Joseph 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 and Chief Financial Officer Officers and Directors Qualified on State -Approved Master File: Joseph M. DePinto Rankin L. Gasaway Stanley W. Reynolds 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 Exec. Vice Pres. & CFO -0- 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. coloredo.gov/revenue/liquor June 27, 2013 CARPCO, LLC JOSEPH DAVID CARPENTER III 4605 QUEBEC STREET, SUITE B-1 DENVER, CO 80216 Re: State Individual Master File for Joseph David Carpenter III Account # L024133 Dear Mr. Carpenter: John Hickenlooper Governor Barbara J. Brohl Executive Director Don Burmania Division Director This is to advise you that the Colorado Liquor Enforcement Division ("Division") has, at your request, created an individual "master file" for you. 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 David Carpenter III 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. Individual Master File, Carpenter, Joseph David III 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 DR 8404-I (07/25/11) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1881 PIERCE STREET RM 108A DENVER CO 80261 _- MASTER FILE APPLICATION -- INDIVIDUAL HISTORY RECORD To be completed by the following persons, as applicable: sole proprietors; general partners regardless of percentage ownership, and limited partners owning 10% or more of the partnership; all principal officers of a corporation, all directors of a corporation, and any stockholder of a corporation owning 10% or more of the outstanding stock; managing members or officers of a limited liability company, and members owning 10% or more of the company; and any intended registered manager of Hotel and Restaurant or Tavern class of retail license. NOTICE: This individual history record requires information that is necessary for the licensing investigation or inquiry. All questions must be answered in their entirety or the license application may be delayed or denied. If a question is not applicable, please indicate so by "N/A". Any deliberate misrepresentation or material omission may jeopardize the license application. 1. Name of Business Carpco LLC 2. Your Full Name (last, first, middle) Carpenter, III Joseph David 3. List any other names you have used. Dave Carpenter 4. Mailing address (if different from residence) 4505 Quebec St 51 Denver CO 80216 5. List current residence address. Include any previous addresses within the last five years (attach separate sheet if necessary). STREET AND NUMBER CITY, STATE, ZIP FROM TO Current 4134 Plumwood Drive West Des Moines IA 50265 6/2005 Current Previous 6. List all employment within the last five years. Include any self employment. (Attach separate sheet if necessary) NAME OF EMPLOYER OR BUSINESS ADDRESS (STREET, NUMBER, CITY, STATE, ZIP) POSITION HELD FROM TO JD Carpenter Company Inc 4060 NW Urbandale, Urbandale IA 50322 President 1/96 Current 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 Jennifer Carpenter Wife Member See Attached 8. Have youever applied for, held, or had an interest in a Colorado Liquor or Beer License, or loaned money, furniture, fixtures, equipment or inventory to any licensee? If yes, answer in detail. Yes ❑ No See Attached 9. Have you ever received a violation 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 United States? If yes, explain in detail. Yes I No 1R. Have you or do you have ever been convene° or a crime or recerveu a suspenuea semence, oererre° semence, or roneitea oaa for any offense in criminal or military court any charges pending? (If yes, explain in detail.) I. Yes ®No 11. Are you currently under probation (supervised or unsupervised), parole, or completing the requirements of a deferred sentence? (if yes, explain in detail.) No Oyes 12. Have you ever had any professional license suspended, revoked, or denied? (If yes, explain in detail.) Yes 0 No PERSONAL AND FINANCIAL INFORMATION • Unless 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 identification purposes. 13a. Date of Birth b. Social Security Number SSN c. Place of Birth Ottumwa, IA d. U.S. Citizen? ZYes No e. If Naturalized, State where N/A f. When - N/A g. Name of District Court N/A h. Naturalization Certificate Number N/A I Date of Certification N/A j. If an Alien, Give Alien's Registration Ca d Number N/A k. Permanent Residence Card Number N/A I, Height 6'3" m. Weight 225 n. Hair Color Brown o. Eye Color Brown p. Sex Male q. Race White r. Do you have a current Driver's License? If Sc, give number and state W Yes M No 14. Financial a. Total purchase partnership, Information. price $ (if buying an existing business) or investment being made by the applying entity, corporation, limited liability company, other $ -0- b. List the total amount of stock purchases or fees paid your investment in this business including any notes, $-0- loans, cash, services or equipment, operating capital, c. Provide details of the Investment described in 14.6. You must account for all of the sources of this investment. Attach a separate sheet if needed. Type: Cash, Services or Equipment Source Amount N/A d. Loan Information (attach copies of all notes or loans) Name of Lender Address Term Security Amount N/A I declare under penalty of perjury that kdt}iapplication Oath of and all attachments Applicant are true, correct, and complete to the best of my knowledge. Authorized /2/ rra'p re (' I Title L..V;r----\ I Member Date 10/4/12 Attachment to Master File Application — Carpco LLC Joseph David Carpenter III Have you ever applied for, held, or had an interest in a Colorado Liquor or Beer License, or loaned money, furniture, fixtures, equipment or inventory to any licensee? If yes, answer in detail. Name Location Carpco LLC & 7 -Eleven Inc #39519 — 4786 West gate Drive Windsor CO 80528 Carpco LLC & 7 -Eleven Inc #39528 - 16310 E. Quincy Ave Aurora CO 80013 Carpco LLC & 7 -Eleven Inc ** #39533 — 4690 South Yosemite, Greenwood Village CO 80111 Carpco LLC & 7 -Eleven Inc #39510— 3914 State Hwy 119 Longmont CO 80504 Carpco LLC & 7 -Eleven Inc #395622 — 15296 E. Hampton Ave Aurora CO 80014 Carpco LLC & 7 -Eleven Inc ** #39623 - 1111 Francis St Longmont CO 80501 Carpco LLC & 7 -Eleven Inc #39591-9355 E. Dry Creek Road Centennial CO 80112 ** Does not have a beer license TO WHOM IT MAY CONCERN: I have known J. David Carpenter for years and find him/ her to be a person of sound character and has the background to maintain a professional approach to the liquor business. It is my opinion that he/ she is the type of person who has the maturity, financial responsibility and judgment to responsibly handle a 3.2% Beer Off Premises license. gnature Print Name: Address: 1 PI G1-3 £ jec per/ 4b/ -Q irc 0 f u�or� CL) /9 - Phone Number: 7%1'O' Date: /// � /S- TO WHOM IT MAY CONCERN: I have known J. David Carpenter for S years and find him/ her to be a person of sound character and has the background to maintain a professional approach to the liquor business. It is my opinion that he/ she is the type of person who has the maturity, financial responsibility and judgment to responsibly handle a 3.2% Beer Off Premises license. Signature Print Name: Address: 144/ 7 Phone Number: � o -� � �CO 7 Date: // /.rA2Lr. TO WHOM IT MAY CONCERN: I have known J. David Carpenter for J years and find him/ her to be a person of sound character and has the background to maintain a professional approach to the liquor business. It is my opinion that he/ she is the type of person who has the maturity, financial responsibility and judgment to responsibly handle a 3.2% Beer Off Premises license. Signature Print Name: J I A M Address: 12-\ Wit.- .s t- �—�-- 7 JE��r C —c�c22 Phone Number: 1/430 3 8407 9 7 61 Date: -2-(q/1 S 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.gov/revenue/liquor June 27, 2013 CARPCO, LLC JENNIFER CARPENTER 4605 QUEBEC STREET, SUITE B-1 DENVER, CO 80216 John Hickenlooper Governor Barbara J. Brohl Executive Director Don Burmania Division Director Re: State Individual Master File for Jennifer Carpenter Account #1024181 Dear Ms. Carpenter: This is to advise you that the Colorado Liquor Enforcement Division ("Division") has, at your request, created an individual "master file" for you. 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: Jennifer Carpenter 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. Individual Master File, Carpenter, Jennifer 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 DR 8404-4 (07/25/11) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1881 PIERCE STREET RM 108A DENVER CO 80261 • -- MASTER FILE APPLICA1 ION -- INDIVIDUAL HISTORY RECORD To be completed by the following persons, as applicable: sole proprietors; general partners regardless of percentage ownership, and limited partners owning 10% or more of the partnership; all principal officers of a corporation, all directors of a corporation, and any stockholder of a corporation owning 10% or more of the outstanding stock; managing members or officers of a limited liability company, and members owning 10% or more of the company; and any intended registered manager of Hotel and Restaurant or Tavern class of retail license. NOTICE: This individual history record requires information that is necessary for the licensing investigation or inquiry. All questions must be answered in their entirety or the license application may be delayed or denied. If a question is not applicable, please indicate so by "N/A". Any deliberate misrepresentation or material omission may jeopardize the license application. 1. Name of Business Carpco LLC 2. Your Full Name (last, first, middle) Carpenter Jennifer Lynn 3. List any other names you have used. None 4. Mailing address (if different from residence) 4605 Quebec St Ste B1 Denver CO 80216 5. List current residence address. Include any previous addresses within the last five years (attach separate sheet if necessary). STREET AND NUMBER CITY, STATE, ZIP FROM TO Current 4134 Plumwood Drive West Des Moines IA 50265 6/2005 Current Previous 6. List all employment within the last five years. Include any se f employment. (Attach separate sheet if necessary) NAME OF EMPLOYER OR BUSINESS ADDRESS (STREET, NUMBER, CITY, STATE, ZIP) POSITION HELD FROM TO None Current 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 Joseph Carpenter Husband Managing Member See Attached ' 8. Have you ever applied for, held, or had an interest in a Colorado inventory to any licensee? If yes, answer in detail. See Attached Liquor or Beer License, or loaned money, furniture, fixtures, equipment or ❑ No 12 Yes 9. Have you ever received a violation 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 United States? If yes, explain in detail. Li Z Yes No 10. Have you ever been convicted of a crime or reu'eived a suspended sentence, deferred sentence, or forfen. v bail for any offense in criminal or military court ''or do you have any charges pending? (If yes, explain in detail.) a Yes !i No 11. Are you currently under probation (supervised or unsupervised), parole, or completing the requirements of a deferred sentence? (if yes, explain in detail.) MI Yes No 12. Have ❑Yes you r� ever had any professional license suspended, revoked, or denied? (If yes, explain in detail.) No PERSONAL AND FINANCIAL INFORMATION Unless 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 identification purposes. 13a. Date of Birth b. Social Security Number SSN c. Place of Birth Waterloo IA d. U.S. NI Citizen? Yes • No e. If Naturalized, State where N/A f. When N/A g. Name of District Court N/A h. Naturalization Certificate Number N/A i. Date of Certification N/A j. If an Alien, Give Alien's Registration Ca d Number N/A k. Permanent Residence Card Number N/A I. Height 57" m. Weight 120 n. Hair Color Blonde o. Eye Color Brown p. Sex Female q. Race White r. Do you have a current Driver's License? If so, give number and state ayes No 14. Financial Information. a. Total purchase price $ (if buying an existing business) or investment being made by the applying entity, corporation, limited liability company, other $ M- partnership, b. List the total amount of your investment in this business including any notes, loans, cash, services or equipment, operating capital, stock purchases or fees paid $ -0- c. Provide details of the Investment described in 14.b. You must account for all of the sources of this investment. Attach a separate sheet if needed. Type: Cash, Services or Equipment Source Amount N/A d. Loan Information (attach copies of all notes or loans) Name of Lender Address Term Security Amount N/A Oath of Applicant I declare under penalty of perjury that this application and all attachments are true, correct, and complete to the best of my knowledge. Authorized Signet re i �, --1 4 Title Member Date 10/4/12 Attachment to Master File Application —Carpco LLC Jennifer Carpenter Have you ever applied for, held, or had an interest in a Colorado Liquor or Beer License, or loaned money, furniture, fixtures, equipment or inventory to any licensee? If yes, answer in detail. Name Location Carpco LLC & 7 -Eleven Inc #39519-4786 West gate Drive Windsor CO 80528 Carpco LLC & 7 -Eleven Inc #39528 - 16310 E. Quincy Ave Aurora CO 80013 Carpco LLC & 7 -Eleven Inc ** #39533 —4690 South Yosemite, Greenwood Village CO 80111 Carpco LLC & 7 -Eleven Inc #39510— 3914 State Hwy 119 Longmont CO 80504 Carpco LLC & 7 -Eleven Inc #395622 —15296 E. Hampton Ave Aurora CO 80014 Carpco LLC & 7 -Eleven Inc ** #39623 - 1111 Francis St Longmont CO 80501 Carpco LLC & 7 -Eleven Inc #39591-9355 E. Dry Creek Road Centennial CO 80112 ** Does not have a beer license TO WHOM IT MAY CONCERN: I have known Jennifer Carpenter for years and find him/ her to be a person of sound character and has the background to maintain a professional approach to the liquor business. It is my opinion that he/ she is the type of person who has the maturity, financial responsibility and judgment to responsibly handle a 3.2% Beer Off Premises license. �714/t/� K- dkfrtAi Signature // Print Name: A-14 / S,V4 zlkn vt/ Address: / Q/ 3 c Je .c d/ 4t,ui *gal f&vUYZ( co c/601 Phone Number: 190-90-'o /9 Date: / ( � / TO WHOM IT MAY CONCERN: I have known Jennifer Carpenter for S years and find him/ her to be a person of sound character and has the background to maintain a professional approach to the liquor business. It is my opinion that he/ she is the type of person who has the maturity, financial responsibility and judgment to responsibly handle a 3.2% Beer Off Premises license. Signature Print Name: Address: i xi/A/7- VS_ Gs' Ti /4;y /iar Phone Number: Date: //!f/,.>o/s TO WHOM IT MAY CONCERN: 2 I have known Jennifer Carpenter for 3 years and find him/ her to be a person of sound character and has the background to maintain a professional approach to the liquor business. It is my opinion that he/ she is the type of person who has the maturity, financial responsibility and judgment to responsibly handle a 3.2% Beer Off Premises license. Signature Print Name: Address: jA/c n -t An) t, ,S. -t 1 S� 2 -- C-6) e2 Phone Number: 341V3 S (3 Y Date: Filed on behalf of the Applicant by: Dill Dill Carr Stonbraker & Hutchings, PC 303-777-3737 STATE OF IOWA COUNTY OF POLK ) AFFIDAVIT AFFIDAVIT WITH RESPECT TO SOURCE OF FUNDS TO BE INVESTED WITH THE FOLLOWING APPLICANT: Cameo L.L.C. & 7 -Eleven, Inc. I. THE AMOUNT TO BE INVESTED IN THIS ENTERPRISE IS: $ 5000 legal fees/licensing costs 2. THE SOURCE OF SAID FUNDS IS: Existing LLC Funds/Carpco L.L.C. B Carpco L.L.C. & 7 -Eleven, Inc. J. David Carpe Manager, Carpco L.L.C. Subscribed and sworn to me this b day of k DvoLa ry My Commission Expires: 312.2-b Notary Public 20J� (nrn";:s�, A 6AIbAEAk.Y'AtiCE i- y Coo' s a h oth!,+•tc33f i� 1, M 1 .ry MARKET/STORE # 1605 - 39510A 7 -ELEVEN, INC. BUSINESS CONVERSION FRANCHISE AGREEMENT Form 4401090 3/10 BCP TABLE OF CONTENTS 1. Statement of Intent and Definitions (a) Statement of Intent 1 (b) Headings 1 (c) Definitions 2 2. Independent Contractor 2 3. Franchise Fee and Down Payment 2 4. Training; 7 -Eleven Operations Manual 2 (a) Initial Training 2 (b) Ongoing Training 2 (c) Employee Training 3 (d) 7 -Eleven Operations Manual 3 5. Ownership of 7 -Eleven System; Confidentiality; Noncompetition 3 (a) Ownership of 7 -Eleven System 3 (b) Confidentiality 3 (c) New Developments 3 (d) Noncompetition 3 6. Effective Date 4 (a) Commencement of Obligations 4 (b) Conditions to Occurrence of Effective Date 4 (c) Failure to Meet Conditions for Effective Date to Occur 5 7. License 5 (a) Grant of License 5 (b) Reserved Rights 5 8. Site Selection and Remodeling 5 (a) Store Site. 5 (b) Construction or Remodeling 5 (c) Permits, Approvals and Licenses 6 (d) Remodeling During the Term of the Agreement 6 9. Equipment Lease 6 (a) Lease and Use of 7 -Eleven Equipment 6 (b) Third Party Beneficiary 7 Form 4401090 3/10 BCP MARICET/STORE # 1605 - 39510A (c) Disclaimer of Warranties 7 (d) Condemnation Awards.. .. 7 (e) Breach of Lease 7 10. Term 8 11. 7 -Eleven Charge 8 (a) 7 -Eleven Charge 8 (b) Adjustment to 7 -Eleven Charge For Failure To Meet Recommended Vendor Purchase Requirement 8 (c) Adjustment to 7 -Eleven Charge Upon Declaration of Invalidity of Certain Provisions 8 12. Your Draws 9 13. Bookkeeping and Financial Matters 9 (a) Bookkeeping; Inspection of Records 9 (b) Deposits; Cash Payments for Daily Purchases/Operating Expenses; Payment Methods 9 (c) Reports and Other Bookkeeping Information 10 (d) Electronic Invoices 10 (e) Financial Summaries and Assistance that We Provide You 10 (0 7 -Eleven Store Information System 11 14. Open Account 11 (a) Open Account 11 (b) Financing 11 (c) Interest 11 (d) Minimum Net Worth 11 15. Audit Rights 12 16. Merchandising and Inventory; Recommended Vendors 12 (a) Initial Inventory 12 (b) Ongoing Inventory and Categories 12 (c) Proprietary Products 12 (d) Product Packaging and Display 13 (e) Nationally/Regionally Promoted Products and Exclusive Products 13 (f) Suggested Retail Selling Prices 13 (g) Vendor Requirements 13 (h) Recommended Vendor Procedure 14 (i) Designated Service Vendors .. 14 Form 4401090 3/10 BCP if (j) Our Vendor Negotiating Practices and Treatment of Discounts and Allowances 14 (k) Review of Vendor Negotiating Practices and Treatment of Discounts and Allowances 15 17. 7 -Eleven Foodservice Standards 15 (a) Compliance with 7 -Eleven Foodservice Standards 15 (b) 7 -Eleven Foodservice Standards Related to Fresh Foods 15 (c) Foodservice Certification Standards 15 (d) Quality Inspections 15 (e) Failure to Comply with 7 -Eleven Foodservice Standards 15 18. Insurance 16 (a) Insurance Coverages 16 (b) Deductibles; Waiver of Subrogation 17 (c) No Limitation 17 (d) Additional Insured/Loss Payee 17 (e) Proof of Insurance 17 (0 Failure to Obtain Insurance 17 (g) Amount and Adequacy of Insurance 17 19. Indemnification 17 (a) Indemnification 17 (b) Notification of and Defense of Claims 18 (c) Remedial Actions 18 (d) Indemnitees' Gross Negligence or Willful Misconduct 18 20. Your Additional Covenants 19 21. Maintenance and Utilities 20 (a) Your Maintenance Obligations 20 (b) Equipment Maintenance 20 (c) Your Failure to Maintain the Store 20 (d) Utilities 20 (e) Our Right to Take Immediate Action 20 22. Taxes 20 23. Advertising 20 (a) Advertising Fee 20 (b) Local Advertising/Advertising Approval 21 (c) Internet Promotion 21 (d) Foodservice Promotion 21 Fonn 4401090 3/10 BCP iii MARKET/STORE # 1605 - 39510A 24. Service Mark and Related Trademarks 22 (a) Right to Use the Marks 22 (b) Agreements Regarding the Marks 22 (c) Use of the Marks 22 (d) Certain Prohibited Conduct 22 (e) Infringement and Dilution 23 (f) Domain Names; Use of Internet 23 25. Renewal of Franchise 23 26. Assignment 25 (a) Assignment by Us 25 (b) Assignment by You 25 (c) Our Right of First Refusal 26 27. Termination 26 (a) Termination by Us 26 (b) Curing Breaches; Multiple Defaults 29 (c) Termination on Death or Incapacitation 29 (d) Market Withdrawal 29 (e) Our Right to Assume Operation of the Store 29 (I) Our Right to Cure Your Breach of Master Lease 30 28. Mutual Termination; Termination by You 30 (a) Mutual Termination 30 (b) Termination by You 30 29. Close Out Procedure 30 (a) Post-Expiration/Termination Obligations 30 (b) Liquidated Damages Upon Termination 31 (c) Settlement of Open Account 32 (d) Payment of Indebtedness to Us; Delivery of Final Financial Summaries 32 30. Mediation 33 31. Governing Law; Jurisdiction 33 (a) Governing Law 33 (b) Jurisdiction 34 32. Miscellaneous Provisions 34 (a) Nonwaiver 34 Form 4401090 3/10 BCP iv (b) Disclosure 34 (c) Circumstances Beyond a Party's Control 34 (d) Notices 34 (e) Severability 35 (f) Personal Qualification 35 (g) Complete Agreement 35 (h) Consents 36 (i) Interpretation 36 (j) Waiver of Damages 36 (k) Consultation with Advisors 36 (I) Savings Clause 36 (m) Fees 36 EXHIBITS: A - Store B - 7 -Eleven Equipment C - Intentionally Left Blank D - Selected Provisions E - Definitions F - Survivorship G - Required Proprietary Products H - Release of Claims and Termination I - Security Agreement J - Procedures for Selection of Third Party Reviewer and for Reviewing Vendor Negotiating Practices Form 4401090 3/10 BCP V MARKET/STORE # 1605 - 39510A BUSINESS CONVERSION FRANCHISE AGREEMENT In consideration of the mutual promises and agreements contained in this Agreement, the receipt and sufficiency of which are acknowledged, the parties agree as follows: 1. Statement of Intent and Definitions (a) Statement of Intent. (1) Franchising is a method of distributing goods or services in a consistent manner. The customer expects a similar shopping experience at a franchised business, regardless of its location or operator. By signing this Agreement, you acknowledge the importance of these concepts, and agree to participate in the 7 Eleven System, which promotes a uniform method of operating a convenience store. You recognize that a uniform presentation of a high quality 7 -Eleven Image is critical to the customer's perception of the 7 -Eleven System, and that you agree to contribute to that perception by operating your Store in compliance with this Agreement, with the 7 -Eleven Operations Manual and with the 7 -Eleven System. (2) You recognize the benefits to you and the 7 -Eleven System (including the benefits of scale that a large chain gets from its high volume of purchases) of purchasing the products and services sold at your Store from common vendors and/or distributors. You agree: (a) to operate your Store in a way that recognizes the right and responsibility of the retailer to provide value to 7 -Eleven customers and (b) to order the products and services 7 -Eleven customers want, introduce new products, manage frequent deliveries, discontinue offering slow selling items, and provide excellent customer service. (3) You acknowledge and agree that providing excellent customer service is vital to the success of the 7 -Eleven System and your Store, and that excellent customer service includes, among other things: (a) proficiency in the English language, (b) a clean and neat personal appearance by you and your employees, (c) prompt, efficient and courteous service to all customers, including greeting and thanking each customer, and any other standards we identify from time to time. (4) You agree that the 7 -Eleven System is subject to modification based on changes in technology, competitive circumstances, customer expectations, and other market variables. Those changes to the 7 -Eleven System may include changes in operating standards, products, programs, services, methods, forms, policies and procedures; changes in the design and appearance of the building, signage and equipment; changes to the 7 -Eleven Operations Manual; and changes to the Service Mark and Related Trademarks. (5) We agree to assist you by providing a recognized brand, merchandising advice and operational systems designed to meet the needs of 7 -Eleven customers. We also agree to contribute to the value of the 7 -Eleven Service Mark and brand by fulfilling those duties and tasks assigned to us in this Agreement as our responsibility within the 7 -Eleven System. (6) You recognize the advantages of the 7 -Eleven System and wish to obtain a franchise for a 7 -Eleven Store. You understand that an investment in the Store involves business risks and that your business abilities and efforts are vital to the success of the Store. You agree that the terms of this Agreement are acceptable to you, and are material and reasonable. (b) Headings. The captions used in the paragraphs and subparagraphs of this Agreement are inserted only for purpose of reference. These captions will not govern, limit, modify or in any other manner affect the scope, meaning or intent of the provisions of this Agreement or any part thereof, nor will they otherwise be given any legal effect. Fonn4401090 3/10 BCP Page 1 of 37 -Agreement (c) Definitions. "We," "us", "our" or "7 -Eleven" means 7 -Eleven, Inc., the franchisor. "You" or "your" means the Franchisee, as defined more fully in Exhibit E. Initially capitalized terms used in this Agreement are defined in Exhibit E or in one of the other Exhibits to this Agreement. 2. Independent Contractor. You and we agree that this Agreement creates an arm's -length business relationship and does not create any fiduciary, special or other similar relationship. You agree: (a) to hold yourself out to the public as an independent contractor; (b) to control the manner and means of the operation of the Store; and (c) to exercise complete control over and responsibility for all labor relations and the conduct of your agents and employees, including the day-to-day operations of the Store and all Store employees. You and your agents and employees may not: (i) be considered or held out to be our agents or employees or (ii) negotiate or enter any agreement or incur any liability in our name, on our behalf, or purporting to bind us or any of our or your successors -in -interest. Without in any way limiting the preceding statements, we do not exercise any discretion or control over your employment policies or employment decisions. All employees of the Store are solely your employees and you will control the manner and means of the operation of the Store. No actions you, your agents or employees take will be attributable to us or be considered to be actions obligating us. 3. Franchise Fee and Down Payment. You agree to pay us the Franchise Fee and the Down Payment stated in Exhibit D upon the execution of this Agreement. Except as provided in Paragraphs 4 and 6 with respect to the Down Payment and Paragraphs 4, 6, 27, and 28 with respect to the Franchise Fee, the Down Payment and the Franchise Fee will be deemed fully earned and nonrefundable when paid in consideration of the administrative and other expenses we have incurred in granting the franchise. 4. Training; 7 -Eleven Operations Manual (a) Initial Training. Prior to the Effective Date, you agree to be certified by us as having satisfactorily completed the initial training program for operating a franchised 7 -Eleven Store. You become certified in the following manner. If you are one (1) individual, then you will be the trainee, and you may designate up to one (I) additional individual that we approve to be an additional trainee. If you are two (2) individuals, then those two (2) individuals will be the trainees. You agree to pay for all expenses related to initial training, except our costs of providing the initial training. If you elect to obtain initial training for more than two (2) individuals at any time during the term of this Agreement, you will pay us an additional fee for such training in an amount we deem appropriate. At any time before the Effective Date, if any of your trainees do not show an understanding of the training, are not satisfactory to us in any respect, or are otherwise not progressing in the initial training program in a manner satisfactory to us, we may stop providing initial training to such trainee(s) or refuse to certify, or revoke the certification of, any such trainee(s). If we discontinue initial training, do not certify, or revoke the certification of any trainee, then: (a) the business relationship, if any, between you and us will immediately terminate; (b) this Agreement will not become effective and will be null and void; and (c) we agree to refund the Down Payment and the Franchise Fee to you, without interest, after deducting any amount you owe us, including any initial training expenses for which we have reimbursed you or which we have paid on your behalf. If you incur any expenses in attempting to obtain a 7 -Eleven Store franchise or if you rely in any other way on obtaining a franchise from us (including incurring out-of-pocket expenses other than those for which we may reimburse you under this Paragraph 4), then you agree that you will have done so solely at your own risk, based on your own judgment and not in reliance upon any statements or representations from us or our agents or representatives. (b) Ongoing Training. We agree to offer additional training that we deem necessary based on changes in the 7 -Eleven System. You agree to be responsible for all expenses, including any computer programs we deem necessary, the costs of travel, lodging, meals and wages, incurred by your trainees and other personnel in connection with any additional training program. You agree to participate, and to require your employees to participate, in any additional training programs we may (but are not obligated to) make available relating to the proper sale of age restricted products or the sale of other products that are regulated and which could lead to a violation of law if not properly sold, as well as other training programs we designate as required. You and your employees must successfully complete any required additional training to our satisfaction. We may make Foram 4401090 3/10 BCP Page 2 of 37 - Agreement MARKET/STORE # 1605 - 39510A additional training programs available through computers or other electronic devices, and you will be required to use such equipment to complete additional training. (c) Employee Training. You agree to at all times keep your Store employees adequately trained in the operation of the 7 -Eleven Store so that your employees can provide excellent customer service and properly carry out the operations of the Store in accordance with the 7 -Eleven System and this Agreement. (d) 7 -Eleven Operations Manual. We agree to provide you with access to our 7 -Eleven Operations Manual on the 7 -Eleven Intranet through your in -Store computer, or through any other means we deem appropriate. The 7 -Eleven Operations Manual provides information regarding, among other things, the 7 -Eleven System, providing excellent customer service, training, Store operations and accounting procedures. You acknowledge the importance of the 7 -Eleven Operations Manual and agree to comply with all standards, specifications, operating procedures and other material contained in the 7 -Eleven Operations Manual, as amended from time to time. We may modify the 7 -Eleven Operations Manual at any time in our sole discretion. We may provide assistance and information to you through methods other than the 7 -Eleven Operations Manual. 5. Ownership of 7 -Eleven System; Confidentiality; Noncompetition. (a) Ownership of 7 -Eleven System. You acknowledge that we are and will remain the sole owner of all rights in and to the 7 -Eleven System, the 7 -Eleven Operations Manual, any information, manuals, materials, and any other confidential communications (whether in electronic or other form) provided to you concerning the operation of a 7 -Eleven Store or related to the 7 -Eleven System, and that you are acquiring no property interest in or other right to them, other than a license to use them during the Term of this Agreement. You agree to at all times treat the 7 -Eleven Operations Manual and any other manuals, materials, confidential communications, and the information contained therein, as confidential and must maintain such information as secret and confidential in accordance with Paragraph 5(b). (b) Confidentiality. During the Term of this Agreement and thereafter, you agree: (i) not to communicate, divulge or use the Confidential Information for the benefit of any other person or entity and, following the expiration, termination, or transfer of this Agreement; (ii) not to use the Confidential Information for your own benefit; (iii) to divulge such Confidential Information only to those of your employees who must have access to it in order to operate the Store. Except as we may expressly permit in writing, you agree not to at any time download, print, transmit via e-mail or any other means, copy, duplicate, record, or otherwise reproduce the Confidential Information, in whole or in part, or otherwise make the Confidential Information available to any unauthorized person. The agreement in this Paragraph 5(b) will survive the expiration, termination or transfer of this Agreement or any interest herein and will be perpetually binding upon you. At our request, you agree to obtain execution of agreements similar to those set forth in this Paragraph 5(b) from your employees, agents, independent contractors, and any other of your personnel who have received or will have access to the Confidential Information. Such agreements must be in the form that we require. (c) New Developments. If you or your employees develop any new concept, process or improvement in the operation or promotion of the Store, you agree to promptly notify us and provide us with all necessary related information, without compensation. You hereby grant to us a perpetual royalty -free license to use and sublicense the use of any such concept, process or improvement in any way we choose. (d) Noncompetition. (1) In -Term Non -compete. Except as otherwise permitted by us in writing, during the term of this Agreement, you agree not to, for yourself, or through, on behalf of or in conjunction with any other person, partnership, corporation, limited liability company or other entity or association, maintain, operate, engage in, or have any financial or beneficial interest in, advise, assist, make loans to, or lease to, a Competitive Business which is, or is intended to be, located within 'A mile of any 7 -Eleven convenience store, except for any interest you had in a Competitive Business as of the Effective Date of this Agreement. Form 4401090 3/10 BCP Page 3 of 37 - Agreement (2) Post -Term Non -compete. Except as otherwise permitted by us in writing, for a continuous uninterrupted period commencing on the expiration, termination, or transfer of all of your interest in this Agreement and continuing for two (2) years thereafter, you agree not to, for yourself, or through, on behalf of or in conjunction with any other person, partnership, corporation, limited liability company or other entity or association, maintain, operate, engage in, or have any financial or beneficial interest in, advise, assist, make loans to, or lease to, a Competitive Business which is, or is intended to be, located within 'IA mile of any 7 -Eleven convenience store, except for any interest you had in a Competitive Business as of the Effective Date of this Agreement (3) Nothing in this Paragraph 5(d) will prevent you from owning, for investment purposes only, an ownership interest in a business entity as a passive investor without any involvement in the operations of such business entity. (4) You and we agree that the foregoing agreement contains reasonable limitations as to time, geographical area and scope of activity to be restrained and does not impose a greater restraint than is necessary to protect our goodwill or other business interests. Such agreement will be construed as independent of any other agreement or provision of this Agreement. If all or any portion of an agreement in this Paragraph 5(d) is held unreasonable or unenforceable by a court having valid jurisdiction in an unappealed final decision to which we are a party, you agree to be bound by any lesser agreement imposed by or resulting from the court order as if the resulting agreement were separately stated in and made a part of this Paragraph 5(d). (5) You acknowledge that we will have the right, in our sole discretion, to reduce the scope of any agreement in this Paragraph 5(d) without your consent, effective immediately upon notice to you, and you agree to promptly comply with any agreement as so modified. (6) You agree that the existence of any claims you may have against us, whether arising under this Agreement or otherwise, will not constitute a defense to the enforcement by us of this Paragraph 5(d). (7) You acknowledge that any breach of any of the terms of the covenant contained in Paragraph 5(d) will result in irreparable injury to us and that we are entitled to injunctive relief to prevent any such breach. 6. Effective Date. (a) Commencement of Obligations. Your and our rights and obligations derived from the grant of the franchise and the right to become part of the 7 -Eleven system of franchisees (including those set forth in Paragraphs 7(a), 9, 11, 12, 13, and 14) will begin as of the Effective Date. All of your and our other rights and obligations (including, without limitation, those in Paragraphs 4, 5, 6, 7(b), 18, 19, 20, 26, 27, 28, and 29) will become effective as of the date that the last party executes this Agreement. Notwithstanding the above, some components described in Paragraphs 7(a) and 9 may not be available as of the Effective Date because of the transition process for the Store but will be available as soon as practicable after the Effective Date (including, but not limited to, installation of all 7 -Eleven Equipment and the entire availability of the Service Mark, Related Trademarks and all Proprietary Products). (b) Conditions to Occurrence of Effective Date. You agree that, in order for the Effective Date to occur, all of the following conditions must be met to our sole satisfaction on or before the date the Store becomes available: (1) you have identified the Store site as provided in Paragraph 8(a) and completed the construction or remodeling of the Store site to our satisfaction as provided in Paragraph 8(b); (2) you and any of your trainees must be certified by us as having satisfactorily completed the initial training program; (3) you will have paid us all amounts that you owe to us under this Agreement; (4) all licenses, permits, and bonds required by applicable laws or regulations or by us for the operation of the Store (or any portion of the Store) must be available and, where possible, obtained, must reflect that the Store will be doing business as a 7 -Eleven convenience store, and must not be subject to any administrative or other legal action; (5) you will not have granted a security interest in the Collateral or the franchise to anyone except us or our Affiliate; (6) you will not have made any misrepresentation Form 4401090 3/10 BCP Page 4 of 37 - Agreement MARKET/STORE # 1605 - 39510A to us in connection with obtaining the 7 -Eleven Store franchise; and (7) you will not have taken any action that would be, or is, a breach of this Agreement. (c) Failure to Meet Conditions for Effective Date to Occur. If (1) you fail to meet any of the conditions contained in Paragraph 6(b); or (2) the Effective Date does not occur within one hundred -eighty (180) days after the date you and we signed this Agreement, then, except for your post -termination obligations and Paragraphs 5 & 29, this Agreement will not become effective and will be null and void and of no further force or effect, unless you and we agree in writing otherwise. If this Agreement does not become effective as provided in this Paragraph 6(c) through no fault of yours, then we agree to refund the Down Payment and the Franchise Fee to you, without interest, minus any amount you owe us as provided in this Agreement. 7. License. (a) Grant of License. As of the Effective Date, we grant to you, upon the terms and conditions in this Agreement, the right and license, and you accept the right and obligation, to operate a 7 -Eleven Store at the Store location identified in Exhibit A in accordance with this Agreement under the Service Mark, Related Trademarks, and the 7 -Eleven System and to use the Trade Secrets and the Proprietary Products in connection with the operation of the Store. (b) Reserved Rigs You agree that this Agreement does not grant you any exclusive or protected territory. You further acknowledge that we are not obligated to grant any additional franchises to you. This Agreement does not grant you the right or license to operate the Store or to offer or sell any products or services offered and sold by 7 -Eleven Stores at or from any location other than the Store location identified in Exhibit A or through any other channel or method of distribution other than a 7 -Eleven Store, including by or through the Internet or similar electronic media. You agree that we and ow -Affiliates retain all other rights, including the right to establish and operate, and to grant others the right to establish and operate, convenience or other stores under the Service Mark and Related Trademarks, any trade names, and other service marks and trademarks, at any site other than the Store location, including sites that are adjacent or proximate to the Store location. We and our Affiliates also retain the right to offer and sell, and grant others the right to offer and sell, any products and services similar or dissimilar to those offered by 7 -Eleven Stores, whether identified by the Service Mark, Related Trademarks or by other trademarks, trade names or service marks, through any other channel or by any other method of distribution, including by or through the Internet or similar electronic media, on any terms and conditions we deem appropriate. If we decide to subcontract to you (and you agree to accept) certain of our obligations in connection with the sale of products and/or services over the Internet, we will compensate you for your efforts to fulfill those obligations in a reasonable amount to be mutually agreed upon by you and us. 8. Site Selection and Remodeling. (a) Store Site. You will identify and obtain our approval of a commercially suitable site for the Store location that you own or lease. Even if we give you guidance or advice regarding the selection of the Store site, you will have full responsibility for selecting the site, and neither our approval of a site, nor any advice or guidance we give you shall be interpreted as an endorsement of or representation regarding the likely success of operations at the Store site. (b) Construction or Remodeling. Prior to the Effective Date, you must pay for any construction or remodeling to the Store, as appropriate, in accordance with our specifications and requirements. We will give you detailed standard specifications for the design and layout of the Store site, the estimated cost of completing such work, and we will arrange for and oversee any required construction or remodeling on your behalf, such work to be performed by our contractors. You must pay us the amount of the estimate prior to the commencement of the work. After completion of the work, and all cost reconciliations, we will immediately pay you any amounts you paid in excess of the estimate, and you must immediately pay us any amounts by which the cost of the work exceeded the estimate, as the case may be. Form 4401090 3/10 BCP Page 5 of 37 - Agreement (c) Permits, Approvals and Licenses. We will, at your sole expense, obtain all government permits, approvals or licenses necessary for the construction or remodeling of the Store site that we are managing on your behalf. We will give you the estimated cost for obtaining all such permits, approvals or licenses that we are managing on your behalf, and you must pay us the amount of the estimate prior to the commencement of the permit, approval or license work. After completion of the work, we will immediately pay you any amounts you paid in excess of the estimate, and you must immediately pay us any amounts by which the cost of such permit, approval or license work exceeded the estimate, as the case may be. (d) Remodeling During the Term of the Agreement. During the term of this Agreement you must maintain the Store in a modem appearance and consistent with the general image and appearance of other 7 -Eleven convenience stores located in the market area where the Store is located. We may require you to remodel the Store from time to time in accordance with our specifications and requirements, at your sole expense, in order to accommodate new equipment or to change the appearance of the Store to a look consistent with general image and appearance of other 7 -Eleven convenience stores located in the market area where the Store is located. We will give you detailed standard specifications for the design and layout of the remodeling, the estimated cost of completing such work, and we will arrange for and oversee the remodeling on your behalf, such work to be performed by our contractors. You must pay us the amount of the estimate prior to the commencement of the work. After completion of the work, we will immediately pay you any amounts you paid in excess of the estimate, and you must immediately pay us any amounts by which the cost of the work exceeded the estimate, as the case may be. In addition to any work we may require you to perform as described in paragraph (d) above, we have the right to install or replace at our expense any 7 -Eleven Equipment in the Store that we deem necessary in our sole opinion, along with any fixtures or other improvements we determine in our sole opinion are necessary. You agree to allow access to us or our contractors to any portion of the Store at any time and to allow any work that we deem necessary to be performed as part of such work. You agree to keep the Store open and operating during such remodeling as we may require. 9. Equipment Lease. (a) Lease and Use of 7 -Eleven Equipment. (1) Prior to the Effective Date, we will install any 7 -Eleven Equipment in the Store that we deem necessary in our sole opinion, along with any fixtures or other improvements we determine in our sole opinion are necessary, including, but not limited to, counters and cabinets. After the installation of any such 7 Eleven Equipment, fixtures and/or other improvements as we deem necessary, we will lease the 7 -Eleven Equipment, fixtures and/or other improvements, if any, to you solely for the operation of a franchised 7 -Eleven Store pursuant to this Agreement and in accordance with the 7 -Eleven System. You agree to comply with all local, state and federal laws, statutes, regulations, ordinances, and rules of any applicable governmental entity with respect to the operation, use, repair and possession of the Store and the 7 -Eleven Equipment, fixtures and/or other improvements. (2) You agree to provide a copy of your lease and all consents we deem necessary from the landlord for the Store if you lease the Store site, from any lenders who may have a security or other interest in the Store site and from any other parties that have any interest in the Store site, acknowledging our ownership rights to the 7 -Eleven Equipment and any fixtures and/or other improvements we installed, and our ability to remove the 7 -Eleven Equipment, fixtures and improvements at any time, waiving any rights they may have to landlord's liens or other liens or interests of any type whatsoever relating in any way to the 7 -Eleven Equipment, fixtures and improvements, and acknowledging that we have no liability or obligation in any manner whatsoever to perform any obligations under your lease of the Store site or any loan documents relating to the Store site. You further agree to obtain any other releases, consents or waivers from the landlord for the Store, from any lenders who may have a security or other interest in the Store site and from any other parties that have any interest in the Store site, that we reasonably deem necessary. Form 4401090 3/10 BCP Page 6 of 37 - Agreement MARKET/STORE # 1605 - 39510A (3) In connection with our installation of any of the 7 -Eleven Equipment, and any fixtures and improvements we deem necessary, we may require you to remove any equipment in the Store that you own, lease or otherwise installed in the Store. You will be responsible for all costs related to removing and disposing of such equipment, all at your sole expense. You must maintain insurance covering the 7 -Eleven Equipment as provided in Paragraph 18. We will include an addendum to Exhibit B that includes a list of the equipment that we will allow you to keep. (4) If we currently own the 7 -Eleven Equipment, we may sell it and lease it back or enter into other similar transactions in connection with a financing of the 7 -Eleven Equipment. If we currently lease the 7 Eleven Equipment, then the Lease to you is a sublease. If we are not currently leasing the 7 -Eleven Equipment but we lease it in the future, then the Lease to you will be a sublease. We may, at our option, remove or replace any of the 7 -Eleven Equipment, or require you to remove or replace any equipment we have allowed you to keep in the Store, or add new 7 -Eleven Equipment, including cash registers and point of sale computers and 7 -Eleven Equipment of a type or category other than currently exists. Any new or additional 7 -Eleven Equipment will be added to the list of 7 -Eleven Equipment on Exhibit B or we agree to otherwise provide you with electronic or written notice of such changes to the 7 -Eleven Equipment. You agree to, at all times use, as we require, all 7 -Eleven Equipment and any equipment we have allowed you to keep, currently in the Store or that we add to the Store. We may provide you with replacement Equipment if certain Equipment is damaged or becomes inoperable. If you fail to promptly return the damaged or inoperable equipment to us, we may charge you for the cost of the replacement Equipment by debiting your Open Account. (5) You may not modify, alter, remodel or add to the Store, the 7 -Eleven Equipment or any equipment we have allowed you to keep in the Store, or discontinue using any of the 7 -Eleven Equipment required under the 7 -Eleven System or any equipment we have allowed you to keep in the Store without first obtaining our written consent. (b) Third Party Beneficiary. You are not a third -party beneficiary of, and will have no right directly or independently to enforce, any master lease covering any of the 7 -Eleven Equipment. Such rights are reserved to us to exercise in our sole discretion on a case by case basis. (c) DISCLAIMER OF WARRANTIES. YOU AGREE TO TAKE ALL OF THE 7 -ELEVEN EQUIPMENT (AND ANY FIXTURES AND OTHER IMPROVEMENTS WE MAY HAVE INSTALLED) LEASED UNDER THIS AGREEMENT IN "AS -IS" CONDITION, WITH ALL FAULTS AND DEFECTS, AND ALL DOCUMENTS OF RECORD AFFECTING THE 7 -ELEVEN EQUIPMENT, FIXTURES AND OTHER IMPROVEMENTS WE INSTALL. WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE 7 -ELEVEN EQUIPMENT, FIXTURES AND OTHER IMPROVEMENTS WE INSTALL, INCLUDING WARRANTIES OF HABITABILITY, MERCHANTABILITY, SUITABILITy OR FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON -DISTURBANCE, INTERFERENCE OR INFRINGEMENT. (d) Condemnation Awards. We will be entitled to all awards paid in connection with any condemnation affecting the 7 -Eleven Equipment in the Store or any fixtures and/or other improvements we have added at or around the Store, and, to the extent necessary to effectuate this provision, you assign to us all rights in any condemnation award to which you may be entitled relating in any way to the 7 -Eleven Equipment in the Store or any fixtures and/or other improvements we have added at or around the Store. Additionally, any proceeds from the condemnation award you receive that are specifically attributed to the "goodwill of the Store as a going concern" shall be deposited to the Open Account and shall be subject to the 7 -Eleven Charge. (e) Breach of Lease. You and we intend to create only a lessor -lessee relationship with respect to the Lease of the 7 -Eleven Equipment, fixtures and other improvements provided herein. If you breach this Agreement, then we will be entitled (in addition to any other rights under this Agreement) to invoke all judicial and other rights and Form 4401090 3/10 BCP Page 7 of 37 - Agreement remedies available to a lessor, at law or in equity, including summary proceedings for possession of the 7 -Eleven Equipment, fixtures and other improvements; the right to appointment of a receiver or similar remedies; and/or the right to terminate, cancel, or declare a forfeiture of this Lease of the 7 -Eleven Equipment, fixtures and other improvements. If you receive notice of breach, non -renewal or termination from us and you fail to surrender the 7 -Eleven Equipment, fixtures and other improvements prior to the effective date of termination stated in the notice, then you will be deemed to be a tenant at sufferance and a trespasser, you agree to immediately surrender the 7 -Eleven Equipment, fixtures and other improvements, and you will not be entitled to any notice to quit or vacate. 10. Term. Unless sooner terminated as provided in Paragraph 27, the Term of this Agreement will end 10 years from the Effective Date. 11. 7 -Eleven Charge. (a) 7 -Eleven Charge. You agree to pay us the 7 -Eleven Charge for the License, the Lease and our continuing services. Beginning after the third full Accounting Period following the Effective Date, the 7 -Eleven Charge is due and payable each Collection Period with respect to the Receipts from that Collection Period at the time the deposit of those Receipts is due, and will be charged pursuant to Paragraph 14 of this Agreement. We may reconcile the 7 -Eleven Charge account reflected in the Financial Summaries on a monthly or other periodic basis. At the reconciliation, we may make appropriate adjustments for changes in hours of operation or other items necessitating an adjustment to the total 7 -Eleven Charge for the Accounting Period or any portion thereof. You may not withhold Receipts or prevent payment of the 7 -Eleven Charge to us on the grounds of the alleged non- performance or breach of any of our obligations to provide services to you or any other obligations to you under this Agreement or any related agreement. (b) Adjustment to 7 -Eleven Charge for Failure to Meet Recommended Vendor Purchase Requirement. If at any time during the Term of this Agreement we determine based upon data available to us ("Determination Date") that your total Purchases of all products, and, separately, total purchases of cigarettes, do not meet the Recommended Vendor Purchase Requirement for any consecutive three (3) full Accounting Periods, you agree that we may unilaterally amend this Agreement to increase the percentage used to calculate your 7 -Eleven Charge by two (2) percentage points for the Accounting Period next following the Determination Date, regardless of whether you meet the Recommended Vendor Purchase Requirement for such Accounting Period. For example, if 25% was used to calculate your 7 -Eleven Charge before the increase, 27% will be used to calculate your 7 -Eleven Charge after the increase. After the Accounting Period in which the increased percentage is applied, the percentage previously used to calculate the 7 -Eleven Charge may be reinstated; provided, however, that such percentage may be increased again pursuant to this Paragraph 11(b) if you fail to meet the Recommended Vendor Purchase Requirement for any other consecutive three (3) full Accounting Periods during the Term. (c) Adjustment to 7 -Eleven Chat -2e upon Declaration of Invalidity of Certain Provisions. If any part of Paragraphs 16, 17 and/or 23 is declared invalid by a court of competent jurisdiction and we do not terminate this Agreement under Paragraphs 32(e) and 27(a)(8), then you agree that we may unilaterally amend this Agreement to increase the percentage used to calculate your 7 -Eleven Charge by two (2) percentage points for the remainder of the Term of this Agreement. If we elect to terminate this Agreement under Paragraphs 32(e) and 27(a)(8), we will offer you a different 7 -Eleven franchise agreement, which you do not have to accept, with a term equal to the term then -remaining under this Agreement, the terms of which will take into account the current economic situation, the effect of the court's final decision, and such other factors as we deem appropriate, If we adjust your 7 -Eleven Charge pursuant to Paragraph 11(b) or 11(c) above, then you will continue to pay the Advertising Fee pursuant to Paragraph 23(a) during the period of the adjustment. If we adjust your 7 -Eleven Charge pursuant to Paragraph 11(c) above, then you will continue to pay the Advertising Fee if allowed by the Court's decision. Form 4401090 3/10 BCP Page 8 of37 -Agreement MARKET/STORE # 1605 - 39510A 12. Your Draws. Provided that you are not in breach of this Agreement, we agree to: (a) pay to you the Daily Draw indicated in Exhibit D; (b) pay to you every week an amount equal to the Weekly Draw indicated in Exhibit D; (c) within approximately ten (10) Business Days after the end of each Accounting Period, notify you of the available Monthly Draw and Excess Investment Draw for such Accounting Period; and (d) within ten (10) days after we receive your written request for the available Monthly Draw and/or Excess Investment Draw, pay to you the amount of the available Monthly Draw and/or Excess Investment Draw that you specified in your request, such amount not to exceed the greater of the available Monthly Draw or Excess Investment Draw. Notwithstanding our agreement to pay the draws described above, we will withhold of these draw amounts as we determine are necessary to offset any unpaid amounts you owe us under this Agreement. 13. Bookkeeping and Financial Matters. (a) Bookkeeping: Inspection of Records. We have the right to maintain Bookkeeping Records with respect to your operation of the Store as part of our records. You may perfonn or obtain any additional bookkeeping you wish. Either party may inspect records of the operation of the Store prepared or obtained by the other party where the records are maintained during normal business hours. (b) Deposits: Cash Payments for Daily Purchases/Operating Expenses: Payment Methods. (1) You agree to: (i) properly prepare and date the Cash Report and submit it daily or at other times we specify; (ii) deposit all Receipts into Store safes or other currency control devices as designated by us before depositing such Receipts in the Bank or night depository we designate; (iii) deposit the Receipts for each Collection Period within twenty-four (24) hours after the end of the Collection Period in the Bank or night depository we designate, except for cash you spend from that day's Receipts for Purchases or Operating Expenses paid on that day, provided that you properly report, and provide us with invoices related to, such cash expenditures for Purchases and/or Operating Expenses; (iv) deliver to us, at the times we specify, written verification by the Bank of the deposit (this verification must be dated as of the next day the bank is open for business immediately following the end of the Collection Period); (2) If we request, you agree to deliver the Receipts (except for authorized and documented cash expenditures for Purchases and Operating Expenses) to us rather than depositing the Receipts in the Bank. We have the right at any time to require that you cease paying for Purchases and/or Operating Expenses with cash out of the Receipts or limit those Purchases and/or Operating Expenses that you are permitted to make with cash out of the Receipts. (3) You understand and agree that we may withdraw or use for our benefit any amounts you deposit in the Bank or deliver to us at any time, without paying any interest or other compensation to you. You agree that we have the right to apply Receipts first to the payment of the 7 -Eleven Charge and then to amounts that we pay on your behalf. We will pay interest on credit balances in the Open Account as specified by Paragraph 14(c). (4) You agree to accept payment for all goods and services at the Store by use of cash, checks, food stamps, specified credit cards, charge cards, fleet cards, debit cards, pre -paid cards or any other payment methods used by customers that we may require from time to time. Fonn 4401090 3/10 BCP Page 9 of 37 - Agreement (c) Reports and Other Bookkeeping Information. (1) You agree to prepare and furnish to us, on forms, at times (including at each courier pick-up), and in the manner (including submission in an electronic format) that we require: (i) daily summaries of Purchases; (ii) daily reports of Receipts; (iii) time and wage authorizations for your Store employees on a weekly or other periodic basis that we require; (iv) all information we request regarding the vendors from which you make purchases; (v) actual sales data; and (vi) all additional reports that we may reasonably require from time to time. (2) We may require you to prepare or furnish any required reports using in-store computers, cash register equipment or other types of equipment in the Store. (3) You agree to deliver or furnish to us, with the frequency and at the times we require, copies of bank drafts, vendor and other receipts, invoices for Purchases, and receipts and bills for Operating Expenses. You also agree to keep us currently advised electronically or in writing, as we specify, of all your actual retail selling prices (which you alone will set) and of all discounts, allowances, and/or premiums you receive. In addition, you agree to use electronic equipment we provide to order, check -in and scan all products that are capable of being handled in those ways. You further agree to keep (for such time period that we specify from time to time, such time period not to exceed seven (7) years) and make available to us any records, electronic documents, or other documents relating to the operation of the Store that we request you to retain and/or make available. You acknowledge that we are relying on the accuracy of all information you and your employees provide, including all payroll information. You agree that all information that you and your employees provide will be truthful, accurate, complete, and in compliance with all applicable laws and with all policies or requirements we implement from time to time, provided that any changes in policies or requirements will not change the fundamental requirements of Paragraph 13(c)(1). A further description of bookkeeping practices to be used at the Store and our bookkeeping dispute resolution procedures are included in the 7 -Eleven Operations Manual; however, such bookkeeping dispute resolution procedures do not supercede the dispute resolution provisions contained in Paragraphs 30 and 31, and we are not required to comply with such bookkeeping dispute resolution procedures as a condition to the exercise of our rights under Paragraphs 30 and 31. (d) Electronic Invoices. If we have an arrangement with any of your vendors to pay for Purchases through Electronic Invoices, you agree not to pay, or request that we pay, such vendors in any manner other than through Electronic Invoices in accordance with our requirements related to Electronic Invoice payments. (e) Financial Summaries and Assistance That We Provide You. If you are not in Material Breach of this Agreement, we agree to: (1) provide you with Financial Summaries; (2) pay, on your behalf and in accordance with the vendors' payment terms, after you approve and submit them to us, bank drafts and invoices for Purchases (as verified by the vendor statements or the appropriate vendor), bills for Operating Expenses and the payroll for your Store employees; provided, however, that we have the right to immediately pay all Electronic Invoices upon receipt and without your prior approval, subject to your right to dispute the accuracy of such Electronic Invoices with the vendor after payment; (3) pay your draw amounts as provided in Paragraph 12; and (4) assist you in your preparation and filing of your business tax reports and returns (except your income tax, related personal tax returns, and governmental census reports) to the extent the information is available from the Bookkeeping Records. You authorize us to collect discounts and allowances that were not already deducted from invoices, and to charge you for the market value of any premiums you receive based upon Purchases. You acknowledge that we may prepare Interim Financial Summaries at any time. Form 4401090 3/10 BCP Page 10 of 37 -Agreement MARKET/STORE # 1605 - 39510A (f) 7 -Eleven Store Information System. You agree to use the 7 -Eleven Store Information System in connection with your operation of the Store in accordance with our requirements. You agree that we own all information and data compiled by or stored in the 7 -Eleven Store Information System, and that we will have electronic access to, and the right to use in any manner we elect (including selling and retaining all proceeds from such sales) the information compiled and managed by or stored in the 7 -Eleven Store Information System or any other store information systems used at or by the Store at the times and in the manner that we specify. You may not in any way use or disclose all or any part of the information or data compiled by or stored in the 7 -Eleven Store Information System, except in connection with your operation of the Store and as needed to effectively work with your Store suppliers. You may not sell all or any part of the information or data compiled by or stored in the 7 Eleven Store Information System to any individual or entity. 14. Open Account. (a) Ooen Account. As part of the Bookkeeping Records, we agree to establish and maintain an Open Account for you. You agree to pay us any unpaid balance in the Open Account upon expiration or termination of the Agreement or earlier as provided in Paragraph 14(b). We will debit all Purchases, Operating Expenses, draw payments to you and amounts you owe us which relate directly or indirectly to the operation of the Store to the Open Account for the Accounting Period in which we receive invoices, reports or other information with respect to such Purchases, Operating Expenses and amounts you owe us, regardless of when we pay such amounts for you. We will debit the difference between the Down Payment and the unpaid balance on your initial investment to the Open Account. We will credit all Receipts to the Open Account for the Accounting Period in which the Cash Report relating to those Receipts is dated, provided that you properly deposit those Receipts in the Bank, deliver them to us, or otherwise properly account for them as provided in this Agreement. Beginning after the third full Accounting Period following the Effective Date, we will also credit the Operating Expense Credit to the Open Account at the end of each full Accounting Period. We may also credit any amounts we owe you to the Open Account. We will compute the balance in the Open Account in the manner we consider appropriate on a monthly basis or at any time during an Accounting Period that we consider it necessary. We will show the Open Account balance in the Financial Summaries or Interim Financial Summaries that we prepare for each Accounting Period (or any portion thereof). (b) Financinp. We agree to finance any unpaid balance in the Open Account as a loan to you, provided that (1) you are not in Material Breach of this Agreement; (2) you have granted us, and we continue to have, a first lien on the Collateral; and (3) you have executed a Security Agreement and financing statements (including any renewal or continuation financing statements that we require). If at any time there has been a Material Breach by you or we believe that any of the conditions set forth above are not met or if we reasonably believe that our security interest is threatened, we may discontinue the financing described above. If we do so, you agree to immediately pay us the unpaid balance in the Open Account. (c) Interest. If we provide financing on the unpaid balance in the Open Account as described above, then the amount of the unpaid balance in the Open Account at the beginning of each Accounting Period will bear interest for the number of days in the then -current Accounting Period at the rate specified in Exhibit D. If there is a credit balance in the Open Account at the beginning of any Accounting Period, then the amount of the credit balance will bear interest for the number of days in the then -current Accounting Period at the rate specified in Exhibit D. We will credit or debit, as applicable, to the Open Account an amount equal to the accrued interest. However, at our sole option, we may limit the credit balance amount in the Open Account upon which we will pay interest to you upon notice to you. Any such notice will be effective three (3) days after we send such notice to you, and such notice will advise you of your right to withdraw the full current credit balance in the Open Account. We will pay you interest as determined under this Paragraph 14(c) on the current credit balance until the notice is effective. (d) Minimum Net Worth. You agree to maintain at all times during the Term of this Agreement a Minimum Net Worth of at least thirty-five thousand dollars ($35,000). If you operate more than one (1) franchised 7 Eleven Form 4401090 3/10 BCP Page 11 of 37 -Agreement Store, you agree that we may transfer Net Worth in excess of the Minimum Net Worth in one (1) of your 7 -Eleven Stores to another of your 7 -Eleven Stores which has a Net Worth below the Minimum Net Worth, or directly to us if the other Store's Franchise Agreement is terminated or expires and there was an unpaid balance in the Open Account at the time of termination or expiration. 15. Audit Rights. We agree to conduct at least one (1) Audit each calendar quarter or in any other three (3) month period that we designate. If you request, we will conduct additional Audits for a fee equal to the cost of conducting the Audit. In addition to our Audit rights, you may engage a reputable, qualified third -party to conduct Audits of the Store upon twenty-four (24) hours prior written notice to us. We have the right, at our option, to enter the Store and conduct Audits: (1) during hours that the Store is required to be open upon seventy-two (72) hours notice or (2) at any time and without notice (a) after we learn of a Robbery, Burglary, theft, mysterious disappearance of Inventory, Receipts and/or all or any portion of the Cash Register Fund, or casualty; (b) if you fail to properly account for Receipts or report Purchases and/or Operating Expenses within the time periods provided for in this Agreement; (e) if you fail to timely pay an unpaid balance in the Open Account required under Paragraph 14(b); or (d) if the last Audit we conducted reflects an Inventory Overage or Inventory Shortage of more than one percent (I%) of the Retail Book Inventory. You and we acknowledge that accurate Audits may be made while the Store is open for business. You agree that, if you operate more than one (1) franchised 7 -Eleven Store, and we are properly conducting an Audit at one (1) of your Stores, then we have the right to simultaneously conduct Audits of all of your 7 -Eleven Stores, regardless of whether the conditions for Auditing your other 7 -Eleven Stores have been met. Both parties shall receive copies of the report on each Audit. Audits shall be binding twenty-four (24) hours after receipt of such report unless either party gives notice that such party believes the Audit to be incorrect. If such notice is given, either party may cause a re -Audit to be performed within twenty-four (24) hours. If any such re -Audit conducted for you becomes binding and resultsin an adjustment in any Inventory Shortage or Inventory Overage reflected by the last Audit of more than 1% of the Retail Book Inventory, we agree to bear the reasonable cost of such re -Audit. Notwithstanding anything to the contrary contained in this Agreement, we have the right to reverse any Inventory Overage that would be reflected on the Bookkeeping Records for the Store. 16. Merchandising and Inventory; Recommended Vendors. (a) Initial Inventory. On or before the Effective Date, we agree to: (I) determine what portion of your existing inventory in the Store is suitable for remaining in the Store as part of the initial Inventory on the Effective Date, and assist you in removing, at your sole cost, any existing inventory that will not become part of the initial Inventory; (2) mutually agree with you on the cost and retail amounts of your existing inventory that remains in the Store as part of the initial Inventory, which amounts we will use in preparing the Bookkeeping Records; (3) credit your Open Account with the agreed upon cost value of your existing inventory that remains in the Store as part of the initial Inventory; (4) help you procure any additional inventory necessary to ensure an appropriate initial Inventory on the Effective Date, which additional inventory you will purchase for its actual cost and which actual cost amount we will debit to your Open Account; (5) help you clean and stock the Store; and (6) provide other services to prepare the Store to open for business. (b) Ongoing Inventory and Categories. After the Effective Date, you agree to at all times during the Term of this Agreement carry at the Store all Categories of Inventory that we specify. You may delete any Category if such Category does not meet sales goals that we establish, provided that you obtain our prior written consent, which consent will not be unreasonably withheld. You agree to carry, use and offer for sale at the Store only the Inventory and other products that are consistent with the type, quantity, quality, and variety associated with the 7 -Eleven Image and as we specify in the Agreement. You agree to comply with all of our standards and specifications for all Inventory, including Proprietary Products and other products and services carried, used or offered for sale at the Store. (c) Proprietary Products. You agree that we have developed and may develop for use in the 7 Eleven System certain Proprietary Products all of which are proprietary to us and which are our Trade Secrets. You Form 4401090 3/10 BCP Page 12 of 37 -Agreement MARKET/STORE # 1605 - 39510A acknowledge the importance of the Proprietary Products to the 7 -Eleven System, and agree to maintain in the Store at all times a Reasonable and Representative Quantity of all Proprietary Products listed in Exhibit G or otherwise in writing. We may change the Proprietary Products that you are required to offer from time to time upon reasonable notice (delivered in electronic or other form) to you either by unilaterally modifying Exhibit G or by otherwise providing you with written notice of the change in the Proprietary Products that you are required to offer. Effective beginning thirty (30) days after we notify you of the change, you agree to carry and offer for sale the new or modified Proprietary Products. (d) Product Packaging and Display. If we require that a product (including a Proprietary Product) be sold in a standardized container or special packaging (including a container or package that bears the Service Mark), or be sold using certain display cases, equipment, or other related components (including bags and napkins), you may use only the standardized containers, packaging, display cases, equipment and other components that conform to the type, style and quality we specify and that bear any distinctive identification we may designate. You agree to properly account for these items as required by this Agreement and to carry all components designated by us as necessary for any Proprietary Product. You may use containers, packaging, display cases, equipment and related components designated for use in connection with designated Proprietary Products only in connection with the offer, sale or promotion of designated Proprietary Products, unless you obtain our prior written permission. (e) Nationally/Regionally Promoted Products and Exclusive Products. You agree to carry at the Store a Reasonable and Representative Quantity of all designated (i) nationally or regionally advertised or promoted products that are supported by electronic or published media and (ii) products that are exclusive to 7 -Eleven in the convenience store channel. You agree to carry the products specified in (i) and (ii) above during the entire duration of the national or regional advertising or promotional campaign or period of exclusivity, as applicable. Notwithstanding the foregoing, you may discontinue carrying any nationally or regionally advertised or exclusive products if such products do not meet sales goals that we establish and you follow the process we establish for determining whether the items meet such goals. The method for determining sales goals and the process for deletion for such products will be included in the 7 -Eleven Operations Manual. This Paragraph 16(e) shall not apply to Proprietary Products. (t) Suggested Retail Selling Prices. We may suggest retail selling prices for Inventory items and services that you offer at your Store. You have no obligation to sell Inventory items and services at our suggested retail selling prices, but you agree to accurately and timely report to us your actual retail selling prices as required by this Agreement. (g) Vendor Requirements. (1) You agree to purchase your Inventory and other products and services only from Bona Fide Suppliers. Except for shares in publicly -traded companies, you agree not to have or maintain any ownership or voting interest in any vendor from which your Store purchases Inventory, unless we otherwise consent in writing. (2) You agree to at all times during the Term purchase at least eighty-five percent (85%) of your total Purchases and, separately, eighty-five percent (85%) of your cigarette purchases, both computed monthly at cost, from Recommended Vendors in compliance with the Recommended Vendor Purchase Requirement, which is further defined in Exhibit E. (3) You acknowledge the value, importance, and benefits to the 7 -Eleven System of a uniform method and close control of production, distribution, and/or delivery of Proprietary Products. You agree to purchase all of your requirements for such Proprietary Products solely from or through a source (including manufacturers, wholesalers, and distributors) we designate or from us. You agree not to offer or sell at the Store any products which directly compete with the Proprietary Products we designate as exclusive, unless you obtain our prior written consent. Form 4401090 3/10 BCP Page 13 of 37 -Agreement (h) Recommended Vendor Procedure. If you want a Bona Fide Supplier who is not currently a Recommended Vendor to become a Recommended Vendor, you or the Bona Fide Supplier must submit to us a written request for approval and comply with the Recommended Vendor procedure set forth in this Paragraph 16(h). Upon our receipt of your request to have a Bona Fide Supplier become a Recommended Vendor, we agree to review the qualifications of the Bona Fide Supplier, after submission of all necessary data and adequate cooperation, to determine whether the Bona Fide Supplier meets our reasonable business and related requirements for a Recommended Vendor. We reserve the right to determine, in our sole discretion, whether a Bona Fide Supplier meets the necessary requirements to become a Recommended Vendor. The process for Recommended Vendor approval and the general requirements a Bona Fide Supplier must meet to become a Recommended Vendor are set out on the 7 -Eleven Intranet. We reserve the right to revoke our approval of a Bona Fide Supplier as a Recommended Vendor if the Bona Fide Supplier fails to continue to meet any of our then -current criteria. We are not required to approve any particular Bona Fide Supplier as a Recommended Vendor. We will provide you with at least fifteen (15) days' notice of any new Recommended Vendors from which you must purchase. (i) Designated Service Vendors. We may require you to use only designated vendors that provide equipment as an integral part of certain services that are offered at your 7 -Eleven Store, including pay telephone services, automated teller machines (ATMs), and other financial and/or electronic services. You agree to comply with our reporting requirements with respect to such services and revenue derived from the sale of such services, as those requirements may be modified from time to time. (j) Our Vendor Negotiating Practices and Treatment of Discounts and Allowances. (1) In negotiating our contracts with Recommended Vendors and manufacturers (in either case "Vendor") for products and services sold in 7 -Eleven Stores, we will take the following steps: (i) We agree to make a commercially reasonable effort to obtain the lowest cost for products and services available from such Vendor to 7 -Eleven Stores on a Market Basket Basis by identifying all available discounts, allowances and other opportunities for price adjustments. (ii) We will then determine whether or not to accept any discounts, allowances and other opportunities for available price adjustment by: • evaluating the limitations, restrictions and conditions placed on the adjustment by the Vendor, and • taking into consideration whether the nature and requirements of a particular Vendor's offer is consistent with our business concept and strategies. If we decide to accept an allowance, we will ask the Vendor to lower the cost for products and services available from such Vendor to 7 -Eleven Stores in lieu of providing the allowance. If the Vendor advises us that it will not lower the cost of its products and services and we decide to accept the allowance, we will do so according Paragraph 16(j)(1) (iii) through (vi). (iii) If cooperative advertising allowances are available from the Vendor and the Vendor advises us that it will not lower the cost of its products and services to 7 -Eleven Stores in lieu of providing such cooperative advertising allowances, then we will accept and use such cooperative advertising allowances as designated by the Vendor. (iv) If there are any other allowances available from the Vendor and the Vendor advises us that it will not lower the cost of its products and services to 7 -Eleven Stores in lieu of providing such allowances, then we will request that the Vendor provide such allowances as cooperative advertising to be used as designated by the Vendor. Form 4401090 3/10 BCP Page 14 of 37 -Agreement MARKET/STORE it 1605 - 39510A (v) If the Vendor advises us that it will not provide such other allowances as cooperative advertising, then we will accept and use such allowances as designated by the Vendor. (vi) We will request from the Vendor written confirmation that the Vendor will not lower the cost of its products and services to 7 -Eleven Stores in lieu of providing any available allowances. (vii) We will use commercially reasonable efforts to include in all of our contracts with Recommended Vendors provisions for minimum standards for in -stock rates, assortment, delivery time windows, quality standards, customer assistance and other standards designed to assist the Store, as well as incentives for the Recommended Vendor for meeting the standards and penalties for failure to comply with such standards. (2) Anything in this Paragraph 166) or Exhibit J to the contrary notwithstanding, we will treat all discounts and allowances in the manner provided for in the definition of Cost of Goods Sold set forth in Exhibit E. (k) Review of Vendor Negotiating Practices and Treatment of Discounts and Allowances. We agree to pay the reasonable costs, up to a total of $75,000 per calendar year, incurred by the Franchisee Selection Committee (defined in Exhibit J) in relation to the retention of an independent third party ("Third Party Reviewer") as provided in Exhibit J and for the conduct of the review contemplated by Exhibit I, each in accordance with the procedures set forth in Exhibit J. You agree that (i) the dispute resolution procedures set forth in Exhibit J are the exclusive procedures for resolving any disputes relating to or arising from our undertaking under Paragraph 166)(1) and (2); (ii) the review process contemplated by this Paragraph 16(k) shall be the sole remedy for any breach or alleged breach of Paragraphs 16(j) and (k); and (iii) in no event will you be entitled to recover monetary damages or equitable relief for our failure to meet our obligations under Paragraph 166)0) or under the definition of System Transaction Amounts in Exhibit E and the damages that you may be entitled to based upon our failure to meet our obligations under Paragraph I66)(2) are limited, all as provided in Exhibit J. 17. 7 -Eleven Foodservice Standards. (a) Compliance with 7 -Eleven Foodservice Standards. You agree to operate the Store, including the Foodservice Facility, at all times in compliance with the 7 -Eleven Foodservice Standards and in compliance with all applicable laws, regulations and codes, including the U.S. Food & Drug Administration Model Food Code. (b) 7 -Eleven Foodservice Standards Related to Fresh Foods. Without limiting the generality of Paragraph 17(a), you agree to comply with all of our merchandising and shelf life requirements with respect to Fresh Foods and to purchase Fresh Foods only from Recommended Vendors. (c) Foodservice Certification Standards. Where required by applicable laws or regulations, you agree to cause all Store employees to be certified as qualified to work in the Foodservice Facility before they begin work there and prominently display the certificates evidencing each employee's certification. (d) Quality Inspections. We will have the right to enter the Store premises at any time during the times in which the Store is required to be open for the purpose of conducting inspections to determine whether the Store is in compliance with 7 -Eleven Foodservice Standards. You agree to cooperate with our representatives in such inspections by rendering such assistance as they may reasonably request. You also agree to permit us to remove a reasonable number of samples of food or nonfood items from the Store, without payment, subject to your ability to properly write off any such products, in amounts reasonably necessary for testing by us or an independent laboratory to determine whether such samples meet the 7 Eleven Foodservice Standards. (e) Failure to Comply with 7 -Eleven Foodservice Standards. If you do not comply with the 7 Eleven Foodservice Standards, including quality standards or other reasonable operating standards that we establish from Form 4401090 3/10 BCP Page 15 of 37 -Agreement time to time, we will give notice of the breach to you. If you do not cure the breach after notice and a reasonable opportunity to cure, we may perform (or have performed) any action necessary to remedy the breach. If we do so, we may debit your Open Account for the cost of curing the breach. If, after receiving two (2) previous notices of breach and opportunities to cure, within any five (5) year period you receive a third notice of breach, we may, at our sole option: (1) remove the entire Foodservice Facility or portions of the Foodservice Facility, as we consider appropriate, from the Store and debit your Open Account for the cost of this removal and of restoring the Store to its previous condition and/or (2) pursue all other remedies available to us under this Agreement, including termination of this Agreement pursuant to Paragraph 27. However, if in our opinion your breach involves a failure to comply with any of the 7 -Eleven Foodservice Standards which are intended to protect the health or safety of persons or of any federal, state, or local health regulations (including the U.S. Food & Drug Administration Model Food Code), or constitutes a threat to any person, then we may require you to immediately stop serving any or all items from the Foodservice Facility, and you will not be permitted to resume offering or selling such items until you have cured the breach to our sole satisfaction. 18. Insurance. (a) Insurance Coverages. You will obtain before you begin operating the Store, and maintain during the term of this Agreement, at your expense, occurrence based insurance policies protecting you and the Indemnitees (defined in Paragraph 19 below) against any demand or claim for bodily injury, personal injury, death, or property damage, or any loss, liability, or expense whatsoever arising or occurring upon or in connection with the development or operation of the Store. Such policies shall be in form and written by a responsible carrier satisfactory to us (e.g., having an AM Best Rating of at least A- X or its equivalent by a recognized insurance rating service) who is duly licensed by the appropriate governmental authorities and shall include, at a minimum (except as we may specify additional coverages and higher policy limits), the following: (1) commercial general liability insurance, written on an occurrence basis, including broad form contractual liability, broad form property damage, personal injury, advertising injury, completed operations, products liability, liquor liability (if applicable) and fire damage legal liability coverage in the amount of One Million Dollars (US $1,000,000) per occurrence combined single limit for bodily injury and property damage, and Two Million Dollars (US $2,000,000) annual aggregate. If you operate more than one Store under a 7 -Eleven Business Conversion Franchise Agreement, this required annual aggregate amount will increase by One Million Dollars (US$1,000,000) for each additional such Store that you operate. (2) Workers' Compensation insurance, or its equivalent, in amounts prescribed by the state in which the Store is located, including Employers' Liability, and such other insurance as may be required by the state or localities in which the Store is located; provided, that if such states or localities in which the Store is located does not require Workers' Compensation insurance, or if such insurance is required but coverage limits are not specified, then you will obtain such insurance coverage and coverage amounts that we reasonably require. (3) "All Risk" property insurance coverage for the full cost of replacement for loss or damage to the building, improvements, all equipment (including but not limited to the 7 -Eleven Equipment), inventory, store supplies, and personal property located at the Store, and any other property located at the Store in which you may have an interest or for which you are contractually or otherwise responsible, with no coinsurance clause, and business interruption insurance covering your loss of income for a period not less than 12 months and specifically endorsed to include coverage for your continuing payment obligation to us of all fees and related interest you owe us pursuant to the terms and conditions of this Agreement (if applicable). (4) Comprehensive Crime/Money and Securities insurance with a limit per loss of not less than Ten Thousand Dollars ($10,000) for on premises losses and Ten Thousand Dollars ($10,000) for off premises losses, and covering all loss, damage or destruction of money and securities while same is in the care, custody and control of you or your employees, agents or contractors or as may otherwise be your responsibility under this Agreement. Form 4401090 3/10 BCP Page 16 of 37 -Agreement MARKET/STORE # 1605 - 39510A (5) in connection with any construction, renovation, refurbishment, or remodeling of the Store, you will maintain Builders' Risk insurance covering 100% of the completed value of the construction and commercial general liability insurance written on an occurrence basis in the amount of One Million Dollars (US$1,000,000) per occurrence bodily injury and property damage combined single limit, Two Million Dollars (US $2,000,000) annual aggregate and performance and completion bonds in form and amount acceptable to us. (b) Deductibles: Waiver of Subrogation. You may, with our prior written consent, have reasonable deductibles for the insurance policies and coverages required under this Paragraph. All required insurance policies shall also include a waiver of subrogation in favor of us and the other Indemnitees. (c) No Limitation. Your obligation to obtain and maintain the insurance described in this Paragraph shall not be limited in any way because of any insurance we maintain, nor shall your performance of that obligation relieve you of liability under the indemnity provisions in Paragraph 19 of this Agreement. (d) Additional Insured/Loss Payee. We shall be named as an additional insured on all liability insurance policies and we shall be named as a loss payee in connection with our interest in fees under business income insurance policies and our interest, if any, in real and/or personal property under any "All Risk" property insurance and/or comprehensive crime/money and securities policies. All insurance policies will contain a provision that we, although named as an insured and/or loss payee, shall nevertheless be entitled to recover under said policies on any loss we incur due to your negligence. All of your policies shall be written so as to provide primary insurance with respect to the coverages afforded to us and each of the other Indemnitees. Any insurance policy maintained by us or any other Indemnitee shall be considered excess insurance and not required to contribute with any policy carried or maintained by you. (e) Proof of Insurance. At least thirty (30) days before you begin operating the Store, and at least thirty (30) days before any policy expires, you must give us Certificates of Insurance evidencing the required coverage. The Certificates, except for Workers' Compensation or its equivalent, shall name us as either additional insured or loss payee as applicable, and shall state that our interest will not be affected by your breach of any policy provisions. Additionally, all Certificates shall state that we will receive at least 30 days' prior written notice before any material alteration to or cancellation of the coverages occurs. You shall provide us with copies of all insurance policies you obtain in connection with the requirements of this paragraph at any time we request, and you shall make any changes we request to such policies if we determine the policies do not meet the requirements of this paragraph. (f) Failure to Obtain Insurance. If you fail to procure or maintain the insurance required by this Agreement, we may, but do not have to, immediately procure such insurance and charge you the costs for the insurance. You must immediately pay us these costs, together with a reasonable fee for our expenses in procuring such insurance. These remedies shall be in addition to any other remedies we may have. (g) Amount and Adequacy of Insurance. By requiring the amounts of insurance coverages and limits described in this Paragraph 18, we are not representing that these amounts are consistent with local, state or federal laws, rules, regulations, permits, etc. or that the amounts are sufficient to adequately protect you from potential liability under this Agreement. You should consult with an attorney, insurance professional, or other professionals you deem prudent or necessary to determine if the amounts and limits of insurance coverages required in this Paragraph are appropriate for your business and personal situations and whether you should obtain coverage in addition to the coverages we require. 19. Indemnification. (a) Indemnification. You agree to be responsible for and indemnify, defend and hold us, our affiliates, and our and their respective directors, officers, representatives, agents, employees, successors and assigns (collectively, the "Indemnitees") harmless to the fullest extent the law allows from all Losses and Expenses related to any Form 4401090 3/10 BCP Page 17 of 37 -Agreement formal or informal action of any type whatsoever, or a settlement of any formal or informal action or a threat of such action ("Action"), related in any way to any of the following: (1) your infringement, alleged infringement, or any other violation or alleged violation of any patent, mark, trade secret or copyright or other proprietary right owned or controlled by third parties (but not where the claims are based upon the alleged prior rights of a third party to the rights we have granted you under this Agreement); (2) your violation, breach or asserted violation or breach of any applicable law, regulation, ruling, standard or directive or any industry standard; (3) libel, slander or any other form of defamation of us, the 7 -Eleven System or any of our area licensees or franchisees, by you; (4) your violation or breach of any warranty, representation, agreement or obligation in this Agreement or in any other agreement between you and any of the Indemnitees; (5) claims by any of your creditors; (6) claims for damages from the personal or bodily injury or death of any person or damage to property which arises in any way out of any statutory or common law basis of liability; and (7) acts, errors, omissions or neglect of you or any of your directors, officers, representatives, agents, employees, successors or assigns in connection with the development and operation of the Store, including, but not limited to, any acts, errors or omissions of any of the foregoing in the operation of any motor vehicle. The parties understand and agree that 7 -Eleven cannot and does not exercise control over the manner of operation of any motor vehicles used by, or on behalf of, you or any of your directors, officers, representatives, agents, employees, successors or assigns and that the safe operation of any motor vehicle is, therefore, your responsibility. (b) Notification of and Defense of Claims. We will give you written notice of an Indemnified Claim promptly when we become aware of it, however, our failure to give you notice of such claim will not relieve you of your indemnification obligations under this Paragraph 19. At your expense and risk, we may elect (but are not required) to assume, or hire counsel of our choice to handle, the defense and/or settlement of an Indemnified Claim, without in any way reducing your obligation to indemnify the Indemnitees under an Indemnified Claim. The Indemnitees shall have the right to select the attorney to defend them in those actions in which an Indemnitee is named. (c) Remedial Actions. In order to protect persons or property, or our reputation or goodwill, or the reputation or goodwill of others, we may, at any time and without notice, as we, in our judgment deem appropriate, consent or agree to settlements or take such other remedial or corrective action as we deem expedient with respect to any Action if, in our sole judgment, there are reasonable grounds to believe that (a) any of the acts or circumstances listed in Paragraph 19(a)(1) - (7) above have occurred or; (b) any act, error, omission or neglect as described in (7) above may result directly or indirectly in damage, injury, or harm to any person or any property. (d) Indemnitees' Gross Negligence or Willful Misconduct All Losses and Expenses indemnified against and/or incurred under this Paragraph 19 shall be chargeable to and paid by you pursuant to your obligations of indemnity under this Section, regardless of any actions, activity or defense we undertake or the subsequent success or failure of such actions, activity, or defense, and the Indemnitees shall have no obligation or liability in connection with any of the claims, causes of action, fines, penalties, liabilities (including statutory and other liability), damages, obligations, suits, expenses or judgments, including costs of investigation, court costs and reasonable attomey's fees referred to in Paragraph 19(a), provided that such Indemnitee's gross negligence or willful misconduct is not the direct and proximate cause of any such claims, causes of action, fines, penalties, liabilities (including statutory and other liability), damages, obligations, suits, expenses or judgments. Form 440I090 3/10 BCP Page 18 of 37 -Agreement MARKET/STORE # 1605 - 39510A 20. Your Additional Covenants. In addition to your other covenants and obligations contained in this Agreement, you agree to: (a) maintain a high ethical standard in the conduct of the franchised business and in the operation of the Store; (b) devote your best efforts to the business of the Store and to maximizing the Store's sales and Gross Profit; (c) make yourself available to meet with us at reasonable times, at our request; (d) maintain the Store as a 24 -Hour Operation, unless prohibited by law or we agree in writing to different operating hours; (e) provide us access to the Store, all equipment, Inventory, Receipts, Cash Register Fund, cash register readings, banking and other equipment readings (including readings from lottery equipment), money order blanks, bank drafts, and Store supplies at any time and for any period of time during the times in which the Store is required to be open; (f) properly record all sales of Inventory at the time of sale at the retail prices you set and generally offer to customers of the Store; (g) wear, and cause Store employees to wear, only the apparel, including neat and clean uniforms, approved by us while working in the Store; (h) at all times, use the 7 -Eleven Payroll System in accordance with our standards, unless we otherwise consent in writing; (i) comply with and/or to assist us to the fullest extent possible in our efforts to comply with Anti -Terrorism Laws. In connection with such compliance, you certify, represent, and warrant that none of your property or interests is subject to being "blocked" under any of the Anti -Terrorism Laws and that you are not otherwise in violation of any of the Anti -Terrorism Laws. Any violation of the Anti -Terrorism Laws by you, or your employees or any "blocking" of your assets under the Anti -Terrorism Laws will constitute grounds for immediate termination of this Agreement and any other agreement you have entered with us or one of our Affiliates, in accordance with the termination provisions of this Agreement; (j) not to, in any way, represent yourself to anyone, including the media, as our representative and not to make any comment to anyone purporting to be a comment about us or the 7 -Eleven System as one of our representatives. You agree to at all times clearly identify yourself as one of our franchisees in any public statements about us or the 7 -Eleven System; (k) execute all license agreements or similar agreements with us or third parties required for the installation and/or use of computer hardware or software in connection with the operation of your Store; (I) authorize us to obtain from third parties all information regarding the operation of your Store (for example, information from state lottery agencies and vendors) and execute all documentation required to effectuate such authorization; (m) comply with all provisions of any leases covering the Store or any equipment you lease in the Store, provide us with copies of any notices of default that you receive relating to such leases, and refrain from assigning, amending, mortgaging, encumbering, terminating or otherwise altering any such lease without our prior written consent; and (n) properly report and timely pay all taxes of any type whatsoever relating to your operation of the Store. Form 4401090 3/10 BCP Page 19 of 37 -Agreement 21. Maintenance and Utilities. (a) Your Maintenance Obligations. You agree to be responsible for all maintenance, repairs, replacements, janitorial services and expenses relating to the Store (including landscaped areas) and 7 Eleven Equipment (except for our replacement of 7 -Eleven Equipment as provided in paragraphs 8 & 9), a gasoline facility located at the Store (if applicable), and any other equipment in the Store or related to the operation of the Store. (b) Equipment Maintenance. We will arrange for the performance of your required maintenance of the 7 -Eleven Equipment (or any equipment in the Store you own that is being used in connection with the sale of products, other than gasoline, or services in the Store) by contractors that we select. You may be required to sign Maintenance Contracts covering some or all of such maintenance services. We will provide you with a list of the equipment that is being covered by such maintenance services. We will pay for such maintenance on your behalf, and charge such costs to your Open Account at the end of each Accounting Period in the amount stated in Exhibit D. You must arrange for the maintenance of any other equipment in the Store not covered by such maintenance services. Any Maintenance Contracts you sign for landscaped areas outside the Store or any other services related to the Store must be with reputable, financially responsible firms. (c) Your Failure to Maintain the Store. If the Store, 7 -Eleven Equipment, any other equipment in the Store or landscape is not maintained as required above and the condition continues for seventy-two (72) or more hours after we provide notice to you, or if the condition exists upon expiration or termination of this Agreement, then we will have the right to cause the maintenance to be performed at your expense and/or to obtain Maintenance Contracts for the Store and 7 -Eleven Equipment and charge you for the maintenance. (d) Utilities. You agree to pay for all utility or related services related to the operation of the Store, including, but not limited to, sewer, water, gas, telephone services, heating oil and electricity. (e) Our Right to Take Immediate Action. Notwithstanding anything to the contrary in this Agreement, if an incident occurs in or at the Store that, in our sole opinion, could prevent the normal operation of the Store or has the potential to harm or injure customers or their property if not immediately corrected, then we will have the right to cause any necessary corrective action to be performed at your expense and charge you for the cost of such corrective action. 22. Taxes. We agree to pay all personal property taxes related to the 7 -Eleven Equipment specified in Exhibit B (but not your equipment that we allow you to keep in the Store). You agree to be solely responsible for, and must pay, all other taxes, including real property, sales, inventory, payroll, occupancy, business and income taxes and personal property taxes related to the Store and any other equipment at the Store (other than personal property taxes for the 7 -Eleven Equipment provided by or through us). 23. Advertising. (a) Advertising Fee (1) You agree to pay us the Advertising Fee as part of the 7 -Eleven Charge you pay in accordance with Paragraph 11. Advertising Fees become our property to be spent by us in accordance with Paragraph 23(a) (3) and are not held by us in trust. (2) The amount of the Advertising Fee will be $250 each Accounting Period, which amount we will apply from the 7 -Eleven Charge that you pay. (3) We may arrange for all advertising of the 7 -Eleven System, the Service Mark, the Related Trademarks, or merchandise sold in or services offered by 7 -Eleven Stores, as we desire. We agree to spend the Advertising Fees we collect for the Advertising Materials and Programs which may, in our sole discretion, be Form 4401090 3/10 BCP Page 20 of 37 -Agreement MARKET/STORE # 1605 - 39510A used for the general benefit of the 7 -Eleven System, for local, regional, and/or national promotions, or for specific 7 -Eleven Store(s). We agree to accept suggestions from 7 -Eleven franchisees on the use of the funds collected as Advertising Fees. Provided, however, you agree that we have and will continue to have the sole and absolute right to determine how Advertising Fees will be spent, including the selection, direction and geographic allocation of Advertising Materials and Programs and the types of media utilized and that we and our Affiliates have no fiduciary obligation to you or to other 7 -Eleven franchisees with respect to such determinations or expenditures of the Advertising Fees. (4) We undertake no obligation to make expenditures of Advertising Fees which are equivalent or proportionate to a franchisee's Advertising Fee payment or to ensure that any particular franchisee benefits directly or pro rata from such expenditures or from the Advertising Materials and Programs funded by the Advertising Fees. (5) You agree that we have the right to pay or reimburse our expenses of creating, developing, maintaining and administering Advertising Materials and Programs from the Advertising Fees; provided, however, that we agree not to use the Advertising Fees to pay or reimburse ourselves for any internal costs for administering Advertising Materials and Programs or for any in-house advertising agency costs. You further acknowledge that company -operated Stores or other 7 -Eleven franchisees may not be required to pay an Advertising Fee, and you agree to pay the Advertising Fee notwithstanding the payment by other 7 -Eleven franchisees or company -operated Stores of greater, lesser or no Advertising Fees. (6) We agree to advise you annually of Advertising Fee receipts and our advertising expenditures, including in what markets the sums were spent and the type of advertising done, all in the form and manner which we determine in our sole discretion to be appropriate. We are not required to audit the receipts and expenditures of the Advertising Fees or any portion thereof. We will annually advise you of the total amount of our advertising expenditures that are allocated to the Company -operated stores. (b) Local Advertising/Advertising Anproval. In addition to your payment of the Advertising Fee, you may engage in any local print, radio or television advertising you wish if that advertising accurately portrays the Service Mark, the Related Trademarks and/or the 7 -Eleven System, does not jeopardize the 7 -Eleven Image, pertains only to the operation of your Store, is in compliance with all applicable laws, and does not breach any agreement binding on you or us. However, you agree to obtain our written approval before engaging in any advertising or display of the Service Mark or the Related Trademarks if the proposed advertising materials have not been prepared by us or previously approved by us during the twelve (12) month period preceding their proposed use. You agree to submit any unapproved advertising materials to us, and we agree to approve or disapprove such materials within a reasonable time of our receipt of the materials. You may not use any unapproved advertising materials that display Service Mark or the Related Trademarks. You agree to promptly discontinue the use of any advertising materials, whether or not we have previously approved them, upon notice from us. Our advertising approval procedure is set forth in the 7 -Eleven Operations Manual. (c) Internet Promotion. We expressly reserve the right to promote and display all forms of the Service Mark and Related Trademarks, the 7 -Eleven System, and the 7 -Eleven Image by use of the Internet. You may not: (i) engage in any advertising or display of the Service Mark or Related Trademarks; or (ii) market or promote any products or merchandise sold in 7 -Eleven Stores or containing, bearing, or associated with the Service Mark or Related Trademarks by use of the Internet, Internet websites, email, mail order, or similar means, which allows for the display, marketing, or sale of any such products or merchandise other than by sale through the Store. (d) Foodservice Promotion. You agree to properly utilize the Foodservice point -of -sale support and layouts we designate in accordance with the design of the Foodservice Facility that do not contain pre-printed prices. We may, at our option, add to or change the signs in the Foodservice Facility at any time. Form 4401090 3/10 BCP Page 21 of 37 -Agreement 24. Service Mark and Related Trademarks. (a) Right to Use the Marks. We grant you the right to use the Service Mark and Related Trademarks during the Term of this Agreement in accordance with this Agreement and our standards and specifications. (The Service Mark and Related Trademarks are collectively referred to in this Paragraph 24 as the "Marks".) (b) Agreements Regarding the Marks. You agree: (1) That as between us and you, we are the owner of all right, title and interest in and to the Marks and the goodwill associated with and symbolized by them. (2) Not to take any action that would prejudice or interfere with our rights in and to the Marks. Nothing in this Agreement will give you any right, title, or interest in or to any of the Marks, except the right to use the Marks in accordance with the terms and conditions of this Agreement. (3) That all goodwill arising from your use of the Marks will inure solely and exclusively to our benefit, and upon expiration or termination of this Agreement and the license granted herein, no monetary amount will be attributable to you for any goodwill associated with your use of the Marks. (4) Not to directly, or by assisting another, challenge or contest our ownership of or rights in or the validity or enforceability of the Marks, any license granted under this Agreement, or any Trade Secret, copyright in any work, or copyrighted works that we own, use or license. (5) That any unauthorized use of the Marks will constitute an infringement of our rights in the Marks. You agree to provide us with all assignments, affidavits, documents, information and assistance related to the Marks that we reasonably request, including all such instruments necessary to register, maintain, enforce and fully vest our rights in the Marks. (6) That we will have the right to substitute different trade names, trademarks, service marks, logos and commercial symbols for the current Marks to use in identifying the 7 -Eleven System and 7 Eleven Stores, services and products. In such event, we may require you to discontinue or modify your use of any of the Marks or to use one or more additional or substitute marks. We will pay the costs related to such discontinuation, modification, or substitution of the Marks; provided, however, that you will be responsible for all costs associated with changing letterhead, business cards or other business -related items and permitted trademarked items and all trademarked supplies and trademarked merchandise. (c) Use of the Marks. You further agree to: (1) Operate and advertise the Store only under the name "7 -Eleven," without prefix or suffix, unless otherwise authorized or required by us in writing. (2) Not use the Marks as part of any corporate, legal or other name. (3) Not use the Marks to incur any obligation or indebtedness on behalf of us. (4) Not use any Marks except as expressly authorized in this Agreement. (5) Comply with our instructions in filing and maintaining requisite trade name or fictitious name registrations, and execute any documents deemed necessary by us or our counsel to obtain protection of the Marks or to maintain their continued validity and enforceability. (d) Certain Prohibited Conduct. In addition to other prohibitions in this Agreement, you may not, at any time: Form 4401090 3/10 BCP Page 22 of 37 -Agreement MARKET/STORE # 1605 - 39510A (1) use, except as permitted by this Agreement, the Service Mark, any other trade indicia, that we own or license, including the Related Trademarks, the goodwill represented by any of them, the 7 -Eleven System, the Trade Secrets, any Advertising Materials or Programs that we own, use or license, or claim any right to any of them, except a right to use them that is expressly granted by the terms of this Agreement; (2) use any work of authorship which is substantially similar to a work subject to a copyright we own or license; (3) make, support or help another to make use of any name, trademark, service mark, trade dress or other visual or audible material which is not expressly permitted by this Agreement and comprises in part the numeral "7" or the term "eleven" or is otherwise likely to cause confusion with or dilute the distinctiveness of the Service Mark or any other trade indicia, including the Related Trademarks, that we own or license; or (4) commit any other act which may adversely affect or be detrimental to us, other 7 -Eleven franchisees, or any of our rights in or to the Service Mark, other trade indicia, including the Related Trademarks, or any copyright or Trade Secret that we own or license, the 7 -Eleven Image, or the 7 -Eleven System. You acknowledge that any breach of any of the terms of the covenants contained in Paragraph 24(d)(1) through (4) will result in irreparable injury to us and that we are entitled to injunctive relief to prevent any such breach. (e) Infringement and Dilution. You agree to notify us immediately of any apparent infringement or dilution of or challenge to our use of or rights in any Mark by any person. You agree not to communicate with any person other than us or our counsel and your counsel in connection with any such apparent infringement, dilution, challenge or claim. We will have complete discretion to take any action we deem appropriate in connection with any infringement or dilution of, or challenge or claim to, any Mark and the right to control exclusively, or to delegate control of, any settlement, litigation, Patent and Trademark Office proceeding or other proceeding arising out of any such alleged infringement, dilution or challenge or claim, or otherwise relating to any Mark. You agree to execute all such instruments and documents, render such assistance, and do such acts or things as may, in our opinion, reasonably are necessary or advisable to protect and maintain our interests in the Marks. (f) Domain Names: Use of Internet. (1) You acknowledge that we are the lawful, rightful and sole owner of the Internet domain names "www.7-Eleven.com" and "www.7-ll.com" and any other Internet domain names registered by us. You unconditionally disclaim any ownership interest in such domain names or any similar Internet domain names. You agree not to register or to use any Internet domain name in any class or category, or any other UAL, that contains words and/or numbers used in or similar to those used in the Service Mark or any Related Trademark, or any abbreviation, acronym, phonetic variation or visual variation of those words and/or numbers. You will assign to us any such domain name(s) you own on the Effective Date. (2) You agree not to establish an Internet website that displays the Marks or relates or refers to the Store without our prior written approval and our grant of a license to use the Marks on such website. 25. Renewal of Franchise. At the end of the Term of this Agreement, we may allow you a one time right to renew your rights under this Agreement for one (1) term equal to the number of years of the initial term provided for in our then -current Business Conversion Franchise Agreement, only if all of the following conditions have been met: (a) We unilaterally agree in our sole discretion to continue operations at the Store as a 7 -Eleven store operating under a Business Conversion Franchise Agreement or similar program, with consideration given to, without limitation, the economic impact to us of the Store, the type or quality of gasoline offered at the Store (if Form 4401090 3/10 BCP Page 23 of 37 -Agreement applicable), the length of any leases covering the Store site, the quality of operations at the Store, or other factors we may consider in our sole discretion. (b) If applicable, we unilaterally agree in our sole discretion to offer you an opportunity to sign our then - current Business Conversion Franchise Agreement. (c) You give us written notice of your election to renew not less than nine (9) months or more than twelve (12) months before the end of the Term. (d) We, in our sole judgment, decide to continue offering the Business Conversion Franchise Agreement under which this franchise was granted (where you, and not us, own or lease the land and building) (e) The law permits the renewal of your franchise and the continued operation of the Store. (f) We determine, in our sole judgment, that your Store is in compliance with the 7 -Eleven Foodservice Standards. (g) You are not in Material Breach of this Agreement, and you are current on all amounts you owe to us as of the end of the Term . (h) You have maintained the Minimum Net Worth required by Paragraph 14(d) throughout the one (1) year period immediately preceding the end of the Term. (i) You sign and deliver to us our then -current form of Business Conversion Franchise Agreement for franchise renewals, which agreement shall supersede this Agreement in all respects, and the terms of which may differ from the terms of this Agreement, and a mutual termination of this Agreement and general release of claims, in a form substantially similar to Exhibit H to this Agreement. You may not be required to pay an initial or renewal fee in connection with the renewal of the franchise. (j) You complete any remodeling at the Store that we require in accordance with our specifications and requirements, at your sole cost and expense. You will retain, at your sole expense, an architect or engineer to review the plans and specifications and make any modifications necessary to comply with all applicable statutes, ordinances or codes, or dictated by the topography or other features of the site. You must submit the final, detailed plans and specifications to us for written approval before you begin remodeling. You must employ a licensed contractor we approve to do all required remodeling, and you must immediately begin the remodeling process after we give you the specifications and requirements for such work, and continue such work diligently until completion. If you desire, we will arrange for and oversee any required remodeling to be preformed by our contractors, and will charge you the amounts we pay such contractors for such work. (k) You complete, to our satisfaction, a review of your Store operations to ensure that you are meeting the requirements of the 7 -Eleven System and otherwise operating in a manner consistent with the 7 -Eleven Image and standards. We will use a performance measurement rating form that we develop from time to time to evaluate your operation, and will inform you in writing of the status of your evaluation. We will begin this review process approximately 1 year prior to the end of the Term, unless any laws require us to begin the review process sooner. (1) We have not sent you four (4) or more notices of Material Breach of this Agreement during the two (2) year period immediately preceding the end of the Term. (m) You have completed any additional training we require. We agree to pay the reasonable costs associated with the training specified in Exhibit D to this Agreement. (n) You have a continuing right to occupy the Store pursuant to your ownership or leasehold rights. Form 4401090 3/10 BCP Page 24 of 37 -Agreement MARKET/STORE # 1605 - 39510A 26. Assignment. (a) Assignment by Us. We will have the right to transfer or assign this Agreement and all or any part of our rights or obligations herein to any person or legal entity without your consent, and upon such transfer or assignment, the transferee or assignee will be solely responsible for all our obligations arising under this Agreement subsequent to the transfer or assignment. Without limitation of the foregoing, we may sell our assets to a third party; may offer our securities privately or publicly; may merge with or acquire other corporations, or may be acquired by another corporation; or may undertake a refinancing, recapitalization, leveraged buyout or other economic or financial restructuring. (b) Assignment by You. (I) Neither your interest under this Agreement nor all, or substantially all, of the Collateral may be transferred or assigned in any way, partially or completely, without our prior written consent. Without limitation of the foregoing, you may not (a) assign the Lease or transfer an interest in all or substantially all of the Collateral without assigning the entire Agreement in accordance with this Section 26(b) or (b) sublease all or any portion of the Store or 7 -Eleven Equipment. We may condition our consent on the satisfaction of all of the following conditions: (i) You authorize us to provide the transferee with, and the transferee executes, a disclosure form containing a waiver and a release by the transferee of any claim against us for any amount paid to you or representation made by you; (ii) You execute, at our option, a mutual termination of this Agreement and general release of claims (in a form similar in all material respects to Exhibit H) or an assignment of this Agreement and general release of claims (in a form similar in all material respects to Exhibit H) and an indemnity for any claim by the transferee in any way arising out of or related to the transfer and arrangements or communications between you and the transferee; (iii) You pay all amounts due us or our Affiliates in full and make arrangements satisfactory to us for the payment of all amounts which may become due upon delivery of final Financial Summaries, including the payment into the Open Account of all premium monies you will receive for the franchise; and (iv) This Agreement has not been terminated and no termination is pending and you are not in Material Breach of this Agreement. (2) We will approve or disapprove a proposed transferee or assignee for training within sixty (60) days after we have received all information regarding the proposed transaction that we reasonably require. If approved, the transferee must, at our option, execute either the then -current form of 7 -Eleven Business Conversion Franchise Agreement or an assumption of this Agreement (in either case providing for the then -current financial terms, including the Down Payment, 7 -Eleven Charge, Franchise Fee and all other current terms), complete the then - required training, and be otherwise determined in our sole opinion to meet all qualifications to become a 7 -Eleven franchisee, including those general qualifications set forth in the then -current 7 -Eleven Operations Manual. (3) You and your proposed transferee must have met all of the conditions set forth in this Paragraph 26(b) that we require in order to obtain our final approval of the proposed transfer or assignment. After you transfer or assign your interest under this Agreement and the Collateral, you will have no further right, claim or interest in or to the franchise, the Store, or any assets used or acquired in conjunction with them. (4) You may not grant a security interest in, or otherwise encumber, this Agreement or the Collateral. Form 4401090 3/10 BCP Page 25 of 37 -Agreement (c) Our Right of First Refusal. If you wish to transfer or assign any interest in this Agreement, or your ownership or leasehold interest in the Store site, pursuant to any bona fide offer received from a third party to purchase or otherwise acquire a whole or partial interest in any of such items, then you agree to promptly notify us in writing of the offer, and must provide such information and documentation relating to the offer as we may require, including, but not limited to, the name and address of the prospective purchaser, and a copy of the entire purchase agreement and all related documents covering the proposed purchase, signed by you and the prospective purchaser. We or our designee will have the right and option, exercisable within twenty (20) Business Days after receipt of such written notification and copies of all required documentation describing the terms of the offer, to send written notice to you that we or our designee intend to purchase the interest on the terms and conditions offered by the third party as stated in the notice. If we or our designee elect to purchase the interest, closing must occur on or before twenty (20) Business Days from the date of our or our designee's notice to you of our or our designee's election to purchase or any other date agreed by the parties in writing. If the third party offer provides for payment of consideration other than cash, we or our designee may elect to purchase the interest for the reasonable cash equivalent. The third party offer must not include the purchase of any assets not related to the operation of the Store or any of the 7 -Eleven Equipment, fixtures or other improvements we added to the Store, and any third party offer that includes the purchase of any assets not related to the operation of the Store or any of the 7 -Eleven Equipment, fixtures or other improvements we added to the Store will be automatically disapproved. A material change in the terms of any offer prior to our providing you notice of our intent to exercise our right to purchase the interest will constitute a new offer subject to the same right of first refusal as an initial offer. 27. Termination. (a) Termination by Us. We may terminate this Agreement (subject to your right to cure where stated below) for the occurrence of any one (1) or more of the following events (each of which you acknowledge is a Material Breach and constitutes good cause for termination): (1) Upon forty-five (45) calendar days' notice to you, subject to your right to cure during such forty-five (45) calendar day period, if: (a) you do not operate the Store as a 24 -Hour Operation or for a different number of hours of operation which we have agreed to in writing before the reduction in hours of operation, unless the reduction (I) is the result of governmental regulation and (2) is not directly or indirectly caused by your acts or omissions; (b) you do not comply with any agreement to which you and we or our Affiliate are a party or with a master lease pertaining to the 7 -Eleven Equipment if a copy of the pertinent provisions of such agreement or lease has been provided to you, or with the usual and normal terms of any lease transaction we may enter into with respect to the 7 -Eleven Equipment; (c) you do not use the Store or 7 -Eleven Equipment solely in connection with your operation of the Store under the 7 -Eleven System; (d) you do not properly maintain the Store and 7 -Eleven Equipment; (e) you do not obtain our advance written consent for making any additions to the Store or 7 -Eleven Equipment or discontinuing using any of the 7 -Eleven Equipment; (f) you do not remit insurance proceeds to us which are due and owing to us under the terms of this Agreement; (g) you do not indemnify us as required under Paragraph 19; (h) you do not comply with any provisions of Paragraph 32(f), except if you encumber, transfer or assign any ownership in the franchise in violation of Paragraph 26, for which we may terminate this Agreement on thirty (30) calendar days' notice without an opportunity to cure pursuant to Paragraph 27(a)(3)(b); or Form 4401090 3/10 BCP Page 26 of 37 -Agreement MARKET/STORE # 1605 - 39510A (2) Upon thirty (30) calendar days' notice to you, subject to your right to cure during such thirty (30) calendar day period, if: (a) you improperly use or jeopardize (through advertising or otherwise) the Store, the Service Mark, the Related Trademarks (or the goodwill represented by any of them), copyrights or advertising owned or licensed by us, the 7 -Eleven System, or the 7 -Eleven Image; (b) you offer or sell any Proprietary Product or other product bearing the Service Mark or any of the Related Trademarks that you have purchased from a source not authorized to produce or offer such products, and you have duly reported your purchase of such product(s) to us; (c) you do not pay in a timely manner any taxes or debts with respect to the Store which you are obligated to pay, or a tax lien is imposed on you which affects the Store, so long as such failure to pay or the imposition of such tax lien is not caused by us; (d) you do not maintain any insurance coverage required by Paragraph 18; (e) you fail to comply with Paragraph 16 regarding the merchandising and Inventory, Proprietary Products, product packaging and display, nationally and regionally promoted and exclusive products, retail selling prices, and designated service vendors; (f) you do not comply with the 7 -Eleven Foodservice Standards that we establish from time to time (including the requirement to wear uniforms), except for your failure to comply with any 7 Eleven Foodservice Standards for the Foodservice Facility, with respect to which we may terminate this Agreement on three (3) calendar days' notice and opportunity to cure pursuant to Paragraph 27(a)(6) below; (g) you do not notify us in an accurate and timely manner of discounts, allowances or premiums you receive or of your retail selling prices; (h) you do not obtain or maintain all licenses, permits, or bonds necessary, in our opinion, for your operation of the Store, so long as such failure to obtain or maintain the licenses, permits, or bonds is not caused by us; (i) you violate or fail to comply with any applicable law, rule, regulation, ordinance or order relating to the operation of the Store, including those relating to the sale of alcoholic beverages or tobacco; (j) you fail to immediately notify us that you have received written or verbal notice of any type regarding a possible violation described in (i) above, or fail to immediately provide us with a copy of any such written notices; (k) the unpaid balance in the Open Account becomes immediately due and payable, but you do not repay our loan to you in accordance with this Agreement; (1) you fail to comply with Paragraph 13(f) regarding the use of the 7 -Eleven Store Information System and data; (m) (4); you do not accept any of the payment methods we specify as provided in paragraph 13(b) (n) you do not provide records or reports we require, as provided herein, or do not cooperate with us in obtaining information from any of your vendors or state agencies, except for your failure to provide the records and reports listed in Paragraph 27(a)(4)(b) below for which we may terminate on three (3) Business Days' notice and opportunity to cure; or Form 4401090 3/10 BCP Page 27 of 37 -Agreement (o) except as provided in Paragraphs 27(a)(1), (3), (4), (5), or (6), you otherwise commit a default under this Agreement which is susceptible of being cured or a default under any amendment which is capable of being cured and for which the amendment does not specify a notice and cure provision. (3) Upon thirty (30) calendar days' notice to you, and with no right to cure, if: (a) a voluntary or involuntary petition in bankruptcy is filed by or against you, you make an assignment for the benefit of creditors, or a receiver or trustee is appointed; (b) you attempt to encumber, transfer or assign any interest under this Agreement or the assets of the franchised business in violation of Paragraph 26; (c) (d) you are convicted of, or plead nolo contendere to, a felony not involving moral turpitude; you do not maintain an independent contractor relationship with us; (e) you offer or sell any Proprietary Product or other product bearing the Service Mark or any of the Related Trademarks which you have obtained from a source not authorized to produce or offer such products, and you have not duly reported your purchase of such product(s) to us; or (f) you misrepresent, misstate, or fail or omit to provide material information required as a part of the qualification process. (4) Upon three (3) Business Days' notice to you, subject to your right to cure during such three (3) Business Day period, if: (a) your Net Worth is less than the Minimum Net Worth required by Paragraph 14(d); (b) you do not properly record, deposit, deliver, or expend and report Receipts or deliver deposit slips, cash reports, and all supporting documents, receipts for cash Purchases, and invoices or other reports of Purchases as required by Paragraph 13; or (c) during the times in which you are required to be open, you do not permit any Audit provided for in Paragraph 15 or you deny access to any part of the Store, 7 -Eleven Equipment, Inventory, Receipts, Cash Register Fund, cash register receipts or readings, amusement machine, banking and other equipment readings, money order blanks, bank drafts, or Store supplies. (5) Upon three (3) Business Days' notice to you, and with no right to cure, if: (a) you vacate, desert or otherwise abandon the Store; (b) you are convicted of, or plead nolo contendere to, any charge which involves moral turpitude; (c) you disclose Confidential Information in violation of Paragraph 5 (provided, however, that we will not deem you in Material Breach of this Agreement as a result of isolated incidents of disclosure of Confidential Information by one of your employees if you have taken reasonable steps to prevent such disclosure, including the steps a reasonable and prudent owner of confidential and proprietary information would take to prevent disclosure of such information by its employees, and further provided that you pursue all reasonable legal and equitable remedies against such employee for such disclosure of such Confidential Information); or (d) you lose any leasehold rights for the Store or otherwise lose the right to occupy the Store, there is a condemnation (or transfer in lieu of condemnation) of the Store, there is casualty damage to the Store that cannot reasonably be repaired or replaced within thirty (30) days, or the Store permanently closes because applicable law requires permanent closure of the Store. Form 4401090 3/10 BCP Page 28 of 37 -Agreement MARKET/STORE # 1605 - 39510A (6) Upon three (3) calendar days' notice to you, subject to your right to cure during such three (3) calendar day period, if you fail to comply with any of the 7 -Eleven Foodservice Standards related to Foodservice Facilities or you fail to allow a quality assurance inspector into the Store when requested. (7) Immediately upon notice to you with no right to cure, if you violate any of the Anti -Terrorism Laws. (8) Upon forty-five (45) calendar days' notice to you and with no right to cure, if a provision of this Agreement (including all or any part of Paragraphs 16 or 17), which we, in our sole discretion, determine to be material, is declared invalid by a court of competent jurisdiction, as set forth in Paragraph 32(e). (b) Curing Breaches; Multiple Defaults. If a Material Breach is curable, as specified above, and if you have not previously been served with three (3) separate notices of Material Breach within the two (2) years prior to the occurrence of a fourth (4th) Material Breach, you shall have the right to cure any Material Breach set forth above prior to the expiration of the notice period for that Material Breach (or such other period as may be imposed by law or by any agreement to which we are a party), by taking such actions (or allowing us to take such actions on your behalf) as we may reasonably determine to be necessary to restore us to substantially the same condition we would have held but for your breach. We will not use any notice of Material Breach as a basis for terminating this Agreement if: (i) such notice of Material Breach has been determined by a court not to have been validly issued, or (ii) if we agree that such notice of Material Breach was not validly issued. If you have been served with three (3) separate notices of any Material Breach within the two (2) years before a fourth (4th) Material Breach, we may terminate this Agreement immediately upon notice to you of the fourth (4th) Material Breach in such two (2) year period without any opportunity to cure, whether or not such Material Breaches are of the same or different nature and whether or not such Material Breaches have been cured by you after notice by us. Following the fifth (5th) anniversary of our notice to you of any Material Breach, such Material Breach will not be used as a basis for termination under this Paragraph 27(b), provided that such Material Breach has been cured. (c) Termination on Death or Incapacitation. We may terminate this Agreement upon thirty (30) days' notice (or such longer period that we may determine or as required by applicable law) if you die or become incapacitated. However, if you are more than one (1) individual and only one (1) individual dies or becomes incapacitated, we may, at our option, (1) continue this Agreement with the survivor or non -incapacitated individual or (2) require the survivor or non -incapacitated individual to execute our then -current form of Business Conversion Franchise Agreement, which contains the same financial terms as this Agreement, for the remainder of the Term of this Agreement. (d) Market Withdrawal. We may terminate this Agreement upon not less than thirty (30) days' Withdrawal Notice (or such longer time that we determine or as required by applicable law), if we determine, in good faith and in a normal course of business, to cease the operation of all 7 -Eleven Stores in the relevant geographic market area (being the state or metropolitan statistical area ("MSA") or similar designation as periodically established by the Office of Management and Budget or any replacement governmental office), or in a geographically separate area outside of a MSA in which the Store is located. You acknowledge that such determination and action will be "good cause" for termination. (e) Our Right to Assume Operation of the Store. We may enter the Store premises and assume operation of the Store, 7 -Eleven Equipment, Inventory, Receipts, Cash Register Fund, money order blanks, bank drafts and Store supplies and continue the operation of the Store for your (or your heirs' or legal representatives') benefit and account pending the expiration or termination of this Agreement or resolution of any dispute under this Agreement if: (1) the Store is not open for operation as provided in Exhibit D; (2) you die or become incapacitated, except as otherwise provided in Exhibit F ("Survivorship"); or, (3) in our opinion, a divorce, dissolution of marriage, or felony proceeding in which you are involved jeopardizes the operation of the Store or the 7 -Eleven Image. On behalf of yourself, your heirs, and your legal representatives, you hereby consent to our operating the Store Form 4401090 3/10 BCP Page 29 of 37 -Agreement pursuant to the terms of this Paragraph 27(e) and agree to release and indemnify us from and against any liability arising in connection with our operation of the Store pursuant to this Paragraph 27 (e). You agree to provide us with any consent or approvals of your landlord to allow us to enter the Store premises and take possession of the Store. 7 -Eleven Equipment, Inventory Receipts, Cash Register Fund, money order blanks, bank drafts and Store supplies and continue the operation of the Store pursuant to this sub -section. (f) Our Right to Cure Your Breach of Master Lease. If you breach any terms of a master lease covering your right to possession of the Store, you agree that we have the right, but not the obligation, to effect a cure of such breach on your behalf to prevent a termination of the master lease. We will charge your Open Account any amounts we expend to effect a cure on your behalf. You agree to require your landlord to provide us notice of any breach of the master lease by you, and to allow us a reasonable opportunity to cure such breach on your behalf if you fail to cure such breach within the applicable cure periods in your master lease. 28. Mutual Termination; Termination by You. (a) Mutual Termination. This Agreement may be terminated at any time by written agreement between you and us. (b) Termination by You. You may terminate this Agreement upon at least thirty (30) days written notice to us (or shorter notice, if we accept it), subject to payment of the Liquidated Damages described in Paragraph 29(b) of this Agreement. We have the right to debit such Liquidated Damages to your Open Account. 29. Close Out Procedure. (a) Post-Expiration/Termination Obligations. Upon the termination or expiration of this Agreement for any reason, all rights granted hereunder will terminate and you must immediately take the following actions, at your sole expense: (1) Immediately and permanently discontinue use of the 7 -Eleven System, Service Marks, Related Trademarks, and 7 -Eleven Store Information System, including without limitation any colorable imitation or variation thereof. You shall: (a) Immediately make alterations to the trade dress of the Store necessary, in our reasonable judgment, to distinguish the appearance of the Store from that of other 7 -Eleven Stores, including, but not limited to: (b) Immediately remove any interior or exterior red, green and orange color combination striping and any red and silver combination striping, or any other colors that are commonly used in identifying a 7 -Eleven store; (c) Immediately remove all 7 -Eleven signage (interior and exterior); (d) Immediately remove all other uses of any of the Service Marks and Related Trademarks; and (e) Allow us or our authorized representatives or designees immediate access to the Store at any time to remove any of the 7 -Eleven Equipment that we installed or arranged the installation of at the Store, and any other fixtures or equipment in the Store that we paid for. You must complete the de -identification of the Store no later than 30 days after termination or expiration of this Agreement; (2) Immediately cancel any registered user, assumed name, business name, liquor license or other registration you have which contains the mark "7 -Eleven", any of the other Service Marks, Related Trademarks, the 7 -Eleven trade name or any other service mark of 7 -Eleven; Form 4401090 3/10 BCP Page 30 of 37 -Agreement MARKET/STORE # 1605 - 39510A (3) Not, thereafter, make any reference to the 7 -Eleven System and/or to your status as a former franchisee at the Store or an authorized user of the Service Marks or Related Trademarks; and (4) Promptly return to us, or destroy pursuant to our instructions, all material containing any Confidential Information, Service Marks, Related Trademarks, descriptions or instructions relating to any part of the 7 -Eleven System or the 7 -Eleven Store Information System, and all other manuals, materials confidential communications and any other communications we provided to you under this Agreement, and all copies of such material or any adaptations, translations, or modifications. If you possess any of the foregoing in electronic form, you will delete such material from your computers and other storage devices and not use such material and not retain any copy or record of any of the foregoing, except your copy of this Agreement and of any correspondence between you and us. You will be responsible for all costs incurred in complying with the foregoing. (5) We agree to permit you to transfer the Final Inventory to a third -party transferee only if all amounts that you owe us and our Affiliates are paid in full and you make arrangements satisfactory to us for the payment of any amounts which may become due upon delivery of final Financial Summaries; (6) Transfer to us the Receipts, Cash Register Fund, money order blanks, bank drafts, and lottery tickets (if applicable); (7) Cooperate with us in complying with any applicable law, rule or regulation. You will execute any documents we reasonably require to comply with such law, rule or regulation. (8) Comply with all other post-expiration/termination obligations set forth in this Agreement. (b) Liquidated Damages Upon Termination. (1) If we terminate the Agreement under Paragraph 27 of this Agreement, if the Agreement terminates before the end of the Term, or if you terminate the Agreement as provided in Paragraph 28(b) of this Agreement (which termination by you shall be a material breach of this Agreement), you and we hereby agree that the amount of damages which we would incur for premature termination of this Agreement would be difficult, if not impossible, to accurately ascertain and you will pay an amount equal to a flat fee during the first 24 Accounting Periods, and thereafter a percentage of the total 7 -Eleven Charge you paid or were required to pay for the twelve (12) full Accounting Periods immediately prior to the termination, according to the following formula: Number of full Accounting Periods you operated the Store Amount of liquidated damages, calculated by multiplying the following percentage times the total 7 -Eleven Charge you paid or were required to pay for the 12 full Accounting Periods immediately prior to the termination 23 or less $200,000 flat fee 24 to 71 200% 72 to 83 160% 84-95 120% 96-107 80% 108 or more 40% Form 4401090 3/10 BCP Page 31 of 37 -Agreement Notwithstanding anything to the contrary, the total amount of liquidated damages you would be required to pay shall not exceed $200,000. The amounts specified above shall constitute liquidated damages, and shall not be construed to be a penalty, shall be paid by you to us within thirty (30) days following such termination. The parties agree that the amounts described above are a reasonable estimation of the damages that we would incur because of the premature termination of this Agreement. The parties further acknowledge and agree that your payment of such liquidated damages amount is intended to fully compensate us only for damages resulting from the premature termination of this Agreement, and shall not constitute an election of remedies, a waiver of your default under this Agreement, waiver of any termination of this Agreement by you, nor waiver of our claim for other damages and/or equitable relief resulting from the material breach of this Agreement. (2) The imposition of these liquidated damages shall be at our option. We are not required to impose these liquidated damages and may, in addition or in lieu thereof, pursue other remedies available to us at law or in equity resulting from your default under this Agreement, including, without limitation, actual damages we incur, if such can be ascertained, and injunctive relief. All such remedies shall be cumulative and non-exclusive. Payment to us of any amount provided for in this Paragraph shall not constitute an election of remedies by us or an excuse for performance of your obligations hereunder. (3) If any litigation or arbitration proceedings instituted as a result of a termination by us are finally concluded in a determination that no breach of this Agreement or other event has occurred for which termination of the Agreement was permitted, we will reimburse you for the liquidated damages you paid to us pursuant to this Paragraph that are covered by said decision, without interest; provided, however, that any such amount to be reimbursed shall be subject to setoff and credit by us for any damages we incur for breach of any other provision of this Agreement and for any other amounts you owe us. (c) Settlement of Open Account. Within thirty (30) days after the termination or expiration of this Agreement in accordance with Paragraph 29(a), we agree to: (1) Credit your Open Account for the Receipts and Cash Register Fund; (2) Credit your Open Account $100 if your copy (and all duplicate copies that you may possess) of the 7 -Eleven Operations Manual operations manuals provided by us to you are returned to us; (3) Debit your Open Account $200 as a closing fee; and (4) Remit to you any amount by which we estimate the Net Worth will exceed the greater of $35,000 or 25% of your total assets (as reflected on the balance sheet that we prepare for the Store for the applicable Accounting Period). We may withhold any additional amounts required by bulk transfer laws or any other similar laws or state or federal agencies. (d) Payment of Indebtedness to Us; Delivery of Final Financial Summaries. Upon termination or expiration of this Agreement, any unpaid balance on the Open Account will be immediately due and payable upon demand by us. Within one hundred five (105) days after the last day of the month in which the termination of this Agreement occurs, we agree to deliver final Financial Summaries to you. If the final Financial Summaries reflect a credit balance in the Open Account, we agree to deliver a check in the amount of the credit balance with the final Financial Summaries. If the final Financial Summaries reflect a debit balance in the Open Account, you agree to immediately pay us the debit balance. Your endorsement of any check sent with the final Financial Summaries or other acceptance of the funds tendered by us acknowledges your release of all claims affecting the figures set forth in the final Financial Summaries. Form 4401090 3/10 BCP Page 32 of 37 -Agreement MARKET/STORE # 1605 - 39510A 30. Mediation. We and you acknowledge that during the Term of this Agreement certain disputes may arise between us that we and you are unable to resolve, but that may be resolvable through mediation. To facilitate such resolution, we and you agree that, except as otherwise specified below, if any dispute between you and us cannot be settled through negotiation, then before commencing litigation to resolve the dispute, you and we will first attempt in good faith to settle the dispute by non -binding mediation. The mediation will be conducted under the auspices and then -prevailing mediation rules of the American Arbitration Association or any successor organization (the "AAA"), unless you and we agree to mediate under the auspices of another mediation organization or other rules. The mediation is subject to the following terms and conditions: (a) Unless otherwise agreed, the mediation will take place at a mutually accessible neutral location within the market area in which your Store is located. (b) You and we agree to share the mediator's fees and expenses and the fees charged by AAA (or any other organization used for the mediation), with two-thirds to be paid by us and one-third by you. Each of us agrees to be solely responsible for any other expenses you or we incur in connection with the mediation. You and we agree that any mediation between you and us, and any mediation between any other 7 -Eleven franchisee and us, will be confidential and non -discoverable and that statements made by either side in any such mediation proceeding will not be admissible for any purpose in a subsequent legal proceeding, and you and we agree to execute documents to evidence such agreement. Unless otherwise specified by the mediation organization and agreed to by you and us, your and our obligations to mediate will be deemed satisfied when six (6) hours of mediation have been completed (whether or not we have resolved our differences), or thirty (30) days after the mediation demand has been made, if either you or we fail to appear or participate in good faith in the mediation. (c) Notwithstanding the foregoing, neither you nor we will have an obligation to mediate any dispute involving (i) the Service Mark or the Related Trademarks; (ii) a failure by you to deposit Receipts as required by this Agreement; (iii) possession of the Store or our termination of this Agreement as provided in Paragraph 27 because of your Material Breach of the Agreement; (iv) discontinuation of our financing as provided in Paragraph 14(b) of this Agreement; (v) our removal of the 7 -Eleven Equipment from the Store; or (vi) any violation of law relating to the Store where you have admitted the violation or a judicial or administrative body has made a finding of a violation. (d) Either you or we may seek a temporary restraining order, preliminary injunction or any other equitable relief at any time prior to or during the course of a dispute if, in your or our reasonable belief, such relief is necessary to avoid irreparable damage or to preserve the status quo. Despite such action, you and we agree to continue to participate in the mediation proceedings specified herein. (e) Except for the judicial actions described in Paragraphs 30(c) and (d), above, neither you nor we will initiate judicial proceedings or arbitration proceedings until the mediation has been completed as contemplated by Paragraph 30(b) above. Any applicable statute of limitations will be suspended for the time in which the mediation process is pending. 31. Governing Law; Jurisdiction. (a) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED AND CONSTRUED UNDER THE LAWS OF THE STATE IN WHICH THE STORE IS LOCATED (EXCEPT FOR APPLICABLE CONFLICT OF LAW RULES). Form 4401090 3/10 BCP Page 33 of 37 -Agreement (b) JURISDICTION. WITH RESPECT TO ANY CONTROVERSY NOT FINALLY RESOLVED THROUGH MEDIATION (AS DESCRIBED ABOVE), YOU HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY FORUM OR COURT, WHETHER FEDERAL OR STATE, WITHIN THE JUDICIAL DISTRICT IN WHICH THE STORE IS LOCATED. YOU HEREBY WAIVE ALL QUESTIONS OF PERSONAL JURISDICTION FOR THE PURPOSE OF CARRYING OUT THIS PROVISION AND AGREE THAT SERVICE OF PROCESS MAY BE MADE UPON YOU IN ANY PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP CREATED HEREBY BY ANY MEANS ALLOWED BY APPLICABLE STATE OR FEDERAL LAW. 32. Miscellaneous Provisions. (a) Nonwaiver. No act or omission by you or us, or any custom, course of dealing, or practice at variance with this Agreement, will constitute a waiver of (a) any right you or we have under this Agreement or (b) the other party's breach of this Agreement, unless it is a waiver in writing, signed by the party to be bound as provided in Paragraph 32(g) below. No waiver by you or us of any right under or breach of this Agreement will be a waiver of any other subsequent, preexisting or continuing right or breach. Our acceptance of any payment you make to us after any breach of this Agreement (including our acceptance of the 7 Eleven Charge) will not be a waiver of the breach, even if we know of the breach at the time we accept the payment. No special or restrictive legend or endorsement on any check or similar item you give to us will constitute a waiver, compromise, settlement or accord and satisfaction. You authorize us to remove or obliterate any such legend or endorsement, and agree that such legend or endorsement will have no effect. (b) Disclosure. You hereby consent to our use and disclosure of any information relating to this Agreement or the Store or contained in the Bookkeeping Records to anyone. (c) Circumstances Beyond a Party's Control. Neither you nor we will be liable in damages to the other for any failure or delay in performance due to any acts of terrorism, governmental act or regulation, war, civil commotion, earthquake, fire, flood, other disaster or similar event, or for any other event beyond your or our control, if the affected party (a) promptly notifies the other of the failure or delay and (b) takes all reasonable steps to mitigate damages caused by such failure or delay. (d) Notices. (i) Except as otherwise provided herein, any notices required to be provided under this Agreement must be in writing and may be (a) personally delivered, or (b) sent by an expedited delivery service, or (c) mailed by certified or registered mail, return receipt requested, first-class postage prepaid, or (d) sent by facsimile, as long as the sender confirms the facsimile by sending an original confirmation copy of the notice by certified or registered mail or expedited delivery service within three (3) Business Days after transmission. If you send us a written request to give copies of your notices to someone you designate and include the name and address of your designee, we agree to send copies of your notices to your designee. If you or your designee cannot be promptly located, we agree to deliver the notice to one of your employees at the Store, and, thereafter, to mail such notice to you by prepaid postage return receipt requested. Any notice will be deemed to have been received (i) in the case of personal delivery, at the time of delivery, or (ii) in the case of an expedited delivery service, three (3) Business Days after being deposited with the service, or (iii) in the case of registered or certified mail, three (3) Business Days after the date of mailing, or (iv) in the case of facsimile or electronic mail, upon transmission with proof of receipt, as long as a confirmation copy of the notice is sent as described above. Copies of notices delivered to your designee or employee will be considered received twenty-four (24) hours after such delivery. Either of us may change our notification address by notifying the other in writing. We may unilaterally amend this Section 32(d) (i) to provide that notices maybe sent by electronic mail. If we permit delivery by electronic mail, the sender will be required to confirm the electronic mail by sending an original confirmation copy of the notice by certified or MARKET/STORE # 1605 - 39510A registered mail or expedited delivery service within three (3) Business Days after transmission. Notices to you by electronic mail will be addressed to the Store address, the electronic mail address for the Store computer or other electronic mail address to which you have access and that we have previously designated in a written notice to you, or to your address shown on the signature page to this Agreement. We will send an electronic reminder to your Store computer to notify you of any electronic notice. Notices to us by electronic mail will be addressed to the address shown on the signature page to this Agreement or other address that we designate in writing. (ii) We reserve the right to establish electronic mailings (i.e., email), web sites, or other forms of communications in which to communicate and distribute information to 7 -Eleven franchisees. You agree that we may utilize such electronic communications to effectively provide binding notices to you. You agree to provide notices to us as set forth above unless we expressly consent and provide for electronic notices from you. (e) Severability. Except as expressly provided to the contrary herein, each provision of this Agreement and any portion thereof is considered severable. If, for any reason, any provision of this Agreement contravenes any existing or future law or regulation, the provision will be considered modified to conform to the law or regulation as long as the resulting provision remains consistent with the parties' original intent. If it is impossible to so modify the provision, such provision will be deleted from this Agreement. If any provision of this Agreement (including all or any part of Paragraphs 16, 17 or 23) is declared invalid by a court of competent jurisdiction for any reason, the parties will continue to be bound by the remainder of this Agreement, which will remain in full force and effect; provided, that if any provision of the Agreement, which we, in our sole discretion, determine to be material, is declared invalid by a court of competent jurisdiction, we reserve the right to terminate this Agreement in accordance with Paragraph 27(a)(8) and, in connection with such termination, offer you a different 7 -Eleven franchise agreement in accordance with Paragraph 11(c). (f) Personal Qualification. We are entering into this Agreement with the person(s) named as the "Franchisee(s)" on the signature page; in reliance upon his, her or their personal qualifications; and upon the representation and agreement that he, she or they agree to be the Franchisee(s) of the Store, will actively and substantially participate in the operation of the Store and will have full managerial authority and responsibility for the operation of the Store. No changes in the ownership and/or control of the franchise may be made without our advance written consent. Any person(s) subsequently added as a "Franchisee" in a writing signed by the parties must likewise actively and substantially participate in the operation of the Store and have full managerial authority and responsibility for the operation of the Store. (g) Complete Agreement. This Agreement and the Exhibits, Amendments, andAddenda to this Agreement, including any other agreements specified in Exhibit D (all of which are hereby incorporated herein and made a part of this Agreement), contain the entire, full and complete agreement between us and you concerning the Store. This is a fully integrated agreement and it supercedes all earlier or contemporaneous promises, representations, agreements and understandings. No agreement relating to the matters covered by this Agreement will be binding on us or you unless and until it has been made in writing and duly executed by you and one of our authorized officers. Our agents or employees may not modify, add to, amend, rescind or waive this Agreement in any other manner, including by conduct manifesting agreement or by electronic signature, and you are hereby put on notice that any person purporting to amend or modify this Agreement other than by a written document signed by one of our authorized officers, is not authorized to do so. You represent and warrant that you have supplied us with all information we requested and that all such information is complete and accurate. You further represent and warrant that you have not relied on and neither we nor any of our agents or employees have made any representations relating to the Store except as expressly contained in this Agreement, or (i) as to the future or past income, expenses, sales volume or potential profitability, earnings or income of the Store or any other location, except as provided in Item 19 of our Uniform Franchise Offering Circular, or (ii) as to site specific information, except as provided in our "Here Are The Facts" supplemental disclosure. (h) Consents. All consents required to be given by us pursuant to this Agreement must be given in writing, and such consents may be granted or withheld in our sole discretion. (i) Interpretation. As used in this Agreement and all exhibits and attachments hereto, (i) the words "you agree" or "we agree" or "you will" or "we will" mean an imperative duty and will be interpreted and construed to have the same meaning and effect as the words "you shall" or "you must" or "we shall" or "we must"; and (ii) the words "including", "include" or "includes" will be interpreted and construed to have the same meaning and effect as the words "including, but not limited to" or "including, without limitation". ()) WAIVER OF DAMAGES. YOU HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO OR CLAIM FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES AGAINST US, OUR AFFILIATES, AND OUR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, AGENTS, REPRESENTATIVES, INDEPENDENT CONTRACTORS, SERVANTS AND EMPLOYEES, IN THEIR CORPORATE AND INDIVIDUAL CAPACITIES, ARISING OUT OF ANY CAUSE WHATSOEVER (WIIFTHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) AND AGREE THAT IN THE EVENT OFADISPUTE, YOU WILL BE LIMITED TO THE RECOVERY OF ANY ACTUAL DAMAGES SUSTAINED BY YOU. IF ANY TERM OF THIS AGREEMENT IS FOUND OR DETERMINED TO BE UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, THE FOREGOING PROVISIONS OF WAIVER BY AGREEMENT OF PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES SHALL CONTINUE IN FULL FORCE AND EFFECT. (k) Consultation with Advisors. You acknowledge that you have received, read and understand this Agreement and the related exhibits and agreements, that we have afforded you sufficient time and opportunity to consult with lawyers and other business and financial advisors selected by you about the potential benefits and risks of entering into this Agreement, and that you are entering into this Agreement of your own volition. (1) Savings Clause. Any of your obligations that contemplate the performance of such obligation after the termination or expiration of this Agreement or the transfer of any interest herein, including Paragraphs 5, 18, 19, 20, 29, 30, and 31, will be deemed to survive such termination, expiration or transfer and will remain binding until fully discharged to our sole satisfaction. (m) Fees. We may charge you a fee that we establish in our sole discretion if you request any changes or services related to the Agreement that we are not required to perform, including but not limited to name changes, incorporations, adding or removing an individual or entity from the Agreement, transfers or assignments of the Agreement (other than an assignment under Paragraph 26(b) of this Agreement to a transferee that pays us an initial franchise fee), or other similar activities. Form 4401090 3/10 BCP Page 36 of 37 -Agreement You and we have executed this Agreement this I 1 h 7 -ELEVEN, INC. Signature Lony Thomas Assistant Secretary Full Name (Typed) 7 -Eleven Office/Store No. 1605 - 39510A Address of Office Dallas Signatu�e MARKET/STORE # 1605 - 39510A day of __!e 20 t( . Jason Heffelfinger Market Manager Full Name (Typed) Operations Support CentralizedAdmin., 1722 Routh St, Suite 1000 Street TX 75201-2502 City Facsimile Number: Electronic Mail: franchiseenotice@7-11.com FRANCHISEE(S) CARPCO, L.L.C. Signature Joseph David Carpenter Full Name (Typed) Witness: Witness of Above Signatur Signature Full Name (Typed) State Zip Signature Full Name (Typed) Witness: Witness of Above Signature Signature Full Name (Typed) Witness: Witness: Witness of Above Signature Witness of Above Signature Form 4401090 3/10 BCP Page 37 of 37 -Agreement MARKET/STORE # 1605 - 39510A EXHIBIT A STORE This Exhibit is based on the information you have on the date of this Agreement. It is accurate to the best of your knowledge and belief. If we request, you agree to make a complete copy of any master lease or any documents recorded against the Store available to us. If you have any questions about this Exhibit or you would like a more complete explanation of any item, please contact the Market Manager. Store and Adjoining Property Lease Information: 7 -ELEVEN Store No. 1605 - 39510A Street 3914 State Highway 119 Longmont City [ ] Plot Plan and Legal Description Attached (I Owned by you [g Leased by you CO 80504-9542 State Zip The present term of the master lease expires on the 24 day of August are 4 renewal options remaining under the master lease, each with a renewal term of 5 years. Special Operating Provisions: Form 4401090 3/10 BCP Page 1 of 2 - Exhibit A 2020 . There B FRANCHISEE CARPCO, L.L.C. Joseph David tenter Manager Date 4--»-1 t By Date 7 -ELEVEN, INC. By £v Lony Tho Assistant Secretary Date Lf/f FP/ Form 4401090 3110 BCP Page 2 of 2 - Exhibit A Date By Date MARKET/STORE # 1605 - 39510A ALCOHOLIC BEVERAGE AMENDMENT UNIFORM THIS UNIFORM ALCOHOLIC BEVERAGE AMENDMENT (the "Amendment") is signed by the undersigned franchisee(s) ("you" or "your") and 7 -Eleven, Inc. ("we", "us" or "our") as of the date stated in the last paragraph of this Amendment, BACKGROUND INFORMATION You and we signed a 7 -Eleven Franchise Agreement (the "Agreement") covering 7 -Eleven Store No. 1605 - 39510A (the "Store"); You and we desire to amend the Agreement to cover your acquisition of an alcoholic beverage license and your sale of alcoholic beverages at the Store. The parties agree as follows: An offsale (general alcoholic beverage license) is available for the Store. You must pay all costs related in any way to the license as specified in the Agreement, except for $1 which we will pay. Upon any transfer of the license, our interest in the proceeds will be limited to $1. You and we have signed this Amendment effective as of FRANCHISEE CARPCO, L.L.C. Manager Joseph David Carpenter Date 4-14-11 By Date By By Date Date 7 -ELEVEN, INC. By p Ita . e Assistant Secretary Lony Thomas Date Forth 4400237 1/04 Uniform Alcoholic Beverages ASSIGNMENT OF GROUND LEASE THIS ASSIGNMENT OF GROUND LEASE (this "Assignment"), dated as of the e?tfti 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, 2011, as subsequently amended, demising certain real property located in unincorporated Weld County, Colorado, having an address of 3914 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 interests. Assignor has determined to assign the Lease to Assignee, and Assignee has determined to accept such assignment. NOW, TI-IEREFORE, 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 of page intentionally left blank] 10092 W 3 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 By Dave Carpenter, President —tea ASSIGNEE: CARPCO, L.L.C., an Iowa limited liability company 1009210.3 Bye Dave Carpen`Cer, President 2 GROUND LEASE FOR 3914 COLORADO HWY 119, LONGMONT, COLORADO THIS GROUND LEASE (this "Lease") is entered into effective as of the t 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 I. 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 fmal 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 964266.7 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). Theterm of this Lease shall commenceonthe fifth business 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 180th 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 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 20`h 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 964296.1 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) No security deposit shall be required to be paid by Tenant in connection with this Lease. 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 9642867 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 Tenantmay 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 964286.7 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 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 financing 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 alldepreciation on Tenant's income tax returns for any such budding 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 I 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 I1(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. 964286.7 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, fines, 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 suchlaw, ordinance, order, directive,. rule, regulation or requirement and 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. 964285 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 fmancing 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. 964286.7 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. 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)iwith 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 9642B6.7 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, intemet 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 rights of the owner of the. Demised Premises to relocate such utility 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 964286.7 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 (I) 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 9642867 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 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 ofTenantfor 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 9642S6.7 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 attom 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 9642867 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 not make 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 9642867 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 an application 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 9642867 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 CO 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 9642867 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, or other 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: dosbomlaw@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 964226.7 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 designated mortgagee 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, atany 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. 9642867 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 964186.7 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 Landlord shall 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: �t� L sbom, Managing Partner [TENANT'S SIGNATURE ON FOLLOWING PAGE] 964286 36 TENANT: J.D. CARPENTER COMPANIES, INC., an Iowa Corporation Dive Carpe ter, President 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 IL 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. 964286,7 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 SEPTEMBER 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 2 EXHIBIT C MEMORANDUM LEASE FORM [To be established by Landlord and Tenant during the Due Diligence Period] 964286.) LAYOUT INFORMATION 0 Cce OO n n old p NW tn W KN cell' N NN O$cW W f JUKOZQNQ O ) j yQ �OO�KYYw gaQO -Hi' tta 26 z � Wd' Z 2 o¢ QOWO¢-I Ow0 OLN>JU2mN U'W2 Ln cc en cr, 39510 LONGMONT, CO - EQUIPMENT LAYOUT 2 3914 COLORADO HIGHWAY 119 OFFICE OF THE SECRETARY OF STATE OF THE STATE OF COLORADO CERTIFICATE I, Wayne W. Williams, as the Secretary of State of the State of Colorado, hereby certify that, according to the records of this office, Carpco, L.L.C. is an entity formed or registered under the law of Iowa has complied with all applicable requirements of this office, and is in good standing with this office. This entity has been assigned entity identification number 20111348435. This certificate reflects facts established or disclosed by documents delivered to this office on paper through 02/12/2015 that have been posted, and by documents delivered to this office electronically through 02/13/2015 @ 14:39:12. I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, authenticated, issued, delivered and communicated this official certificate at Denver, Colorado on 02/13/2015 @ 14:39:12 pursuant to and in accordance with applicable law, This certificate is assigned Confirmation Number 9094449. 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 Certificate Confirmation Page of the Secretary of State's Web site, hitn.//www.sos.state.co.us/bie/CernfcateSearchCriteria.do entering the certificate's confirmation number displayed on the certificate, and following the instructions displayed. Confirming the issuance of a certificate is merely optional and is not necessary to the valid and effective issuance ofa certificate. For more information, visit our Web site, http://www.sos.state.co.us/ click Business Center and select "Frequently Asked Questions." CERT GS_F Revised 08/20/2008 This version must be received on or before June 27, 2011. Beginning June 28, 2011, form must be filed online. Document processing fee If document is filed on paper $125.00 If document is filed electronically Currently Not Available Fees & forms/cover sheets are subject to change. To file electronically, access instructions for this form/cover sheet and other information or print copies of filed documents, visit www.sos.state.co.us and select Business. Paper documents must be typewritten or machine printed. 2011134'4355 $125.00 SECRETARY OF STATE 06;20/2011 11; SiI 7 ABOVE SPACE FOR OFFICE USE ONLY Statement of Foreign Entity Authority filed pursuant to §7-90-301, et seq. and §7-90-803 of the Colorado Revised Statutes (C.R.S) ID number (if applicable): I. True name: 2. Assumed entity name (if different From True name) 3. Use of Restricted Words (if any of these terms are contained in an entity name, true name of an entity, trade name or trademark stated in this document, mark the applicable box): 4. Principal office street address: Carpco, L.L.C. ❑ "bank" or "trust" or any derivative thereof ❑ "credit union" ❑ "savings and loan" O "insurance", "casualty", "mutual", or "surety" 4131 Plumwood Drive (Street name and number) West Des Moines IA 50322 (City) (State) (Postal/Zip Code) (Province-lfapplicable) (Country-ifnot US) Principal office mailing address: (if different from above) (Street name and number or Post Office Box information) (City) (State) (Postal/Zip Code) (Province — If applicable) (Country— if not US) 5. Registered agent: (ifan individual): Mulholland John Joseph g Jr OR (if a business organization): (Last) (First) (Middle) (Suffix) AUTHORITY Page I of 3 Rev. 6/01/2011 6. The person appointed as registered agent in the document has consented to being so appointed. 7. Registered agent street address: 8. Registered agent mailing address: (if different from above) 9. Form of entity: 4605 N. Quebec Street Unit B-1 (Street name and number) O Denver (City) a CO 80216 p (State) (Postal/Zip Code) (Street name and number or Post Office Box information) (City) CO (State) (Province- if applicable) (Country— if not US) Limited Liability Company (Postal/Zip Code) 10. Jurisdiction of formation: Iowa 11. Date entity commenced (or expects to commence) transacting business or conducting activities in Colorado: 12. (Optional) Delayed effective date: Notice: O 06/15/2011 O (mm/dd/yyyy) (mm/dd/yyyy) Causing this document to be delivered to the secretary of state for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual's act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the document as one who has caused it to be delivered. 13. Name(s) and address(es) of the individual(s) causing the document to be delivered for filing: Carpenter Joseph David III (Last) (First) (Middle) (Suffix) 4131 Plumwood Drive (Street none and number or Post Office Box information) West Des Moines (City) p IA© 50322 (State) (Postal/Zip Code) (Province -Ifapplicable) (Country -if not US) (The document need not slate the true name and address of more than one individual. However. if you wish to state the name and address af any additional individuals causing the document to be delivered for filing, mark this box ❑ and include an attachment stating the name and address of such individuals.) AUTHORITY Page 2 of) Rev. 6/01/2011 Disclaimer: This form, and any related instructions, are not intended to provide legal, business or tax advice, and are offered as a public service -without representation or warranty. While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form. Questions should be addressed to the user's attorney. AUTHORITY Page 3 of 3 Rev. 6/01 /2011 OPERATING AGREEMENT BY THE MEMBERS OF' CARPCO, LLC ARTICLE I THE COMPANY 1.01 Status. The parties to this Agreement have agreed to the formation of, and are Members of, CARPCO, LLC , a limited liability company organized under the provisions of the Iowa Act. 1.02 Principal Office. The principal office of the Company shall be at 4060 NW Urbandale Drive, Urbandale, IA 50322, or such place as may be designated from time to time by the Manager. The Manager may establish additional places of business for the Company. 1.03 Business of the Company. The Company is a single -purpose limited liability company, the single purpose being the operation of one or more 7 -Eleven stores in accordance with one or more Franchise Agreements. ARTICLE II MEMBERS 2.01 Initial Members. The names and addresses of the Members, their Capital Contribution, number of Units owned, and their share of the Net Profits and Net Losses of the Company are as follows: Member Address J. David Carpenter, 4131 Plumwood Dr., III West Des Moines, IA 50322 Jennifer L. Carpenter 4131 Plumwood Dr., West Des Moines, IA 50322 Capital Contribution Units Shares of Net Profits and Net Losses $80,000.00 80 80% $20,000.00 20 20% 2.02 Additional Members. (a) A person other than a Transferee shall become a Member of the Company upon (i) the unanimous consent of the Members; (ii) payment of the agreed upon Capital Contribution to the Company by the person; and (iii) the person signing an addendum to this Agreement agreeing to be bound to its terms. (b) A Transferee becomes a Member upon the (i) unanimous consent of the Members as more fully described in Article V and (ii) the Transferee signing an addendum to this Agreement agreeing to be bound to its terms. (c) Unit. A Member who has transferred a Unit ceases to be a Member with respect to that (d) A person shall become a Member if, within ninety consecutive days after the Company ceases to have any Members and all of the following occur: (i) The last person to have been a Member, or the legal representative of that person, designates a person to become a Member; and (ii) The designated person consents to become a Member. (e) Changes to the names and addresses of the current Members and the names and addresses of new Members shall be identified by an addendum to this Operating Agreement. 2.03 Liability for Required Contributions. A Member is liable to the Company for his or her Capital Contribution. In addition, any Member who fails to make a required Capital Contribution may have his or her Units forfeited and he or she may be expelled as a Member of the Company pursuant to Section 7.04. A person's obligation to make a contribution to the Company is not excused by the person's death, disability, or other inability to perform personally. If a person does not make a required contribution, the person or the person's estate is obligated to contribute money equal to the value of the part of the contribution which has not been made, at the option of the Company. 2.04 Additional Capital; Limitation. Other than the contributions of the Members set forth in Section 2.01 and new Members as provided in Section 2.02, no Member shall be required to make any additional contributions to the capital of the Company nor be obligated to -2- restore any negative Capital Account as defined in Section 4.01. No Member shall have any liability to the Company, to the other Members, or to the creditors of the Company on account of any deficit balance in such Member's Capital Account except to the extent such deficit arises from the failure of the Member to contribute the full amount of his or her Capital Contribution which he or she was obligated to contribute. No Member shall be entitled to interest on any Capital Contribution or on such Member's Capital Account. 2.05 Member Authority Limited. A Member is not an agent of the Company solely by reason of being a Member. Unless expressly authorized in writing to do so by the Manager, no Member shall have any power or authority to bind the Company in any way or to render it financially liable for any purpose. 2.06 Liability of Members. The debts, obligations, or other liabilities of the Company, whether arising in contract, tort, or otherwise, belong solely to the Company and do not become the debts, obligations, or liabilities of a Member solely by reason of the Member acting as a Member. 2.07 Charging Orders. If a court enters a charging order against the Units of a Member or Transferee for the unsatisfied amount of a judgment, the judgment creditor shall not become a Member or in any way become entitled to the rights of a Member other than the right to receive any distributions that would otherwise be paid to the Member or Transferee until the judgment is satisfied. The Company shall pay over to the person to whom the charging order was issued any distribution that would otherwise be paid to such Member or Transferee. ARTICLE III MANAGEMENT OF THE COMPANY 3.01 Management by a Manager. (a) The Company is manager -managed by one (1) manager appointed by the majority vote of the Members, who shall be J. David Carpenter, III, for an indeterminate term until a successor or successors are appointed by a majority vote of the Members. The conduct of the Company's business and the management of its affairs will be exercised and conducted solely by the Manager. The Manager may resign upon thirty (30) days prior written notice to the Members. The Members may elect a new Manager to replace the resigning Manager at a meeting called for that purpose within thirty (30) days of delivery of the notice of resignation by such Manager. The Manager may be removed as a Manager at any time with or without cause by a majority vote of the Members. 3.02 Officers. The Manager may appoint herself or other individuals (whether or not employees or Members of the Company) as Officers of the Company, which may include, but -3- shall not be limited to, any one or more of the following: (1) a President; (2) one or more Vice Presidents; (3) a Secretary; and (4) a Treasurer. The Manager may delegate her day-to-day management responsibilities to any such Officers, as determined by the Manager from time to time, and such Officers shall have the authority to contract for, negotiate on behalf of and otherwise represent the interests of the Company as so authorized by the Manager. Unless the Manager decides otherwise, if the title is one commonly used for Officers of a business corporation formed under the Iowa Business Corporation Act, the assignment of such title shall constitute the delegation to such individual of the authority and duties that are normally associated with that office and that are set forth in the contract or resolution appointing such Officer or Officers, subject, however, to any specific delegation of authority and duties or specific restriction on the authority and duties as may be made under or set forth in any such contract or resolution. In all events, the Officers shall be subject to the direction and control of the Manager. Such delegation by the Manager shall not cause the Manager to cease to be a Member or Manager of the Company. If the Manager determines to appoint one or more Officers for the Company, each such Officer shall hold office until his or her death, resignation, or removal. An Officer may resign at any time by delivering notice to the Manager. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. Any Officer may be removed by the Manager at any time, with or without cause, but such right of removal shall be without prejudice to and subject to the contract rights, if any, of the person so removed. 3.03 Fiduciary Duties. The Manager and Officers owe to the Company and the Members the fiduciary duties of loyalty and care stated in subsections (a) and (b). (a) Subject to Section 3.04(6), below, the duty of loyalty of a Manager or Officer includes all of the following duties: (1) To account to the Company and to hold as trustee for it any property, profit, or benefit derived by the Manager or Officer regarding any of the following: (A) In the conduct or winding up of the Company's activities; (B) From a use of the Company's property; and (C) From the appropriation of a Company opportunity. (2) To refrain from dealing with the Company in the conduct or winding up of the Company's activities as or on behalf of a person having an interest adverse to the Company. -4- (3) To refrain from competing with the Company in the conduct of the Company's activities before the dissolution of the Company. (b) Subject to the business judgment rule as stated in subsection (d), the duty of care of a Manager or Officer in the conduct and winding up of the Company's activities is to act with the care that a person in a like position would reasonably exercise under similar circumstances and in a manner the Manager reasonably believes to be in the best interests of the Company. (c) All of the Members may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty. (d) The Manager or Officer satisfies the duty of care in subsection (b) if all of the following apply: (1) The Manager or Officer is not interested in the subject matter of the business judgment; (2) The Manager or Officer is informed with respect to the subject of the business judgment to the extent the Manager or Officer reasonably believes to be appropriate in the circumstances; and (3) The Manager or Officer has a rational basis for believing that the business judgment is in the best interests of the Company. (e) A Member does not have any fiduciary duty to the Company or to any other Member solely by reason of being a Member. 3.04 Manager and Officers Have No Exclusive Duty to Company. So long as he or she does not violate 3.03(a) above, neither a Manager nor an Officer, solely by reason of being a Manager or Officer, shall be required to manage the Company as his or her sole and exclusive function, and a Manager or Officer may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Member shall have any right, by virtue of this Agreement, to share or participate in such other investments or activities of any Manager or Officer or to the income or proceeds derived therefrom. 3.05 Statements of Authority. The Manager is authorized on behalf of the Company to deliver to the Iowa Secretary of State for filing a statement of authority. The statement may provide with respect to any Manager or Officer, the authority, or limitations on the authority, of all persons holding the position to do any of the following: (a) Execute an instrument transferring real property held in the name of the Company; and -5- (b) Enter into other transactions on behalf of; or otherwise act for or bind, the Company. 3.06 Use of Professionals. In exercising her powers, the Manager may rely upon and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, or document believed by them to be genuine and to have been signed or prepared by a Member, Officer or employee of the Company, or by any other person (including legal counsel, accountants, and other experts), as to matters the Manager reasonably believes such person is a competent and reliable source for the information. Reliance on any opinion of an independent counsel, accountant or expert whom the Manager reasonably believes is a competent and reliable source for the information shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by the Manager in good faith and in accordance with such opinion. 3.07 Expenses and Salary. The Manager shall be reimbursed by the Company for her reasonable expenses incurred in connection with the performance of her duties and may receive such other compensation as determined by the Members from time to time. 3.08 Liability Limitation and Indemnification of the Manager and Officers. (a) A Manager or Officer shall not be personally liable to the Company or the Members for money damages for any action taken, or any failure to take any action, except liability for any of the following: (1) A breach of the duty of loyalty; (2) A financial benefit received by the Manager or Officer to which the Manager or Officer is not entitled; (3) A distribution made in violation of Section 4.05(b) of this Agreement; (4) Intentional infliction of harm on the Company or a Member; or (5) An intentional violation of criminal law. (b) Any Manager or Officer shall be defended, indemnified, and held harmless by the Company from and against any and all losses, claims, damages, liabilities, settlements and other amounts arising from any and all claims (including reasonable legal fees and expenses), demands, actions, suits or proceedings (civil, criminal, administrative or investigative), in which he or she may be involved, as a party or otherwise, by reason of his or her management of the Company, whether or not he or she continues to be Manager or Officer at the time any such liability or expense is paid or incurred, including any threatened, pending or completed action, suit or proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that such Manager or Officer is or was an agent of the Company; provided that neither the Manager nor the Officer shall be entitled to the foregoing indemnification if a court of -6- competent jurisdiction determined that such losses, claims, damages, liabilities, expenses, or such other amounts resulted primarily from either his or her (i) gross negligence or willful misconduct or (ii) a breach of his or her fiduciary duties set forth in § 3.03 of this Agreement. The termination of a proceeding by judgment, order, settlement or conviction upon a plea of nolo contendere, or its equivalent, shall not, of itself, create any presumption that such losses, claims, damages, liabilities, expenses, or such other amounts resulted primarily from the gross negligence or willful misconduct of the Manager or Officer, or that the conduct giving rise to such liability was not in the best interest of the Company. The Company shall advance a Manager or Officer any expenses (including, without limitation, reasonable legal fees and expenses) incurred as a result of any claim, demand, action, suit or proceeding referred to in this paragraph (b) provided that (i) the legal action, suit, etc. relates to the performance of duties or services by the Manager or Officer on behalf of the Company; and (ii) the Manager or Officer gives a full recourse promissory note to the Company for the amounts of such advances payable in the event that the Manager or Officer is determined to be not entitled to indemnification under this Agreement. (c) The indemnification provided by paragraph (b) of this Section 3.08 shall not be deemed to be exclusive of any other rights to which the Manager or Officers may be entitled under any agreement, as a matter of law, in equity or otherwise, and shall continue as to the Managers or Officers who have ceased to have an official capacity and shall inure to the benefit of the heirs, personal administrators, executors, successors and assigns of the Manager or Officers. (d) Any indemnification pursuant to this section will be payable only from the assets of the Company. (e) The Company may purchase and maintain insurance on behalf of a Member or Manager against liability asserted against or incurred by the Member or Manager in that capacity or arising from that status. 3.09 Special Litigation Committee. (a) If the Company is named as or made a party in a derivative proceeding, the Manager may appoint a special litigation committee to investigate the claims asserted in the proceeding and determine whether pursuing the action is in the best interests of the Company even if the Manager is named as a defendant or plaintiff in the action. If the Manager appoints a special litigation committee, the committee may seek a stay of discovery for the time reasonably necessary to permit the committee to make its investigation. (b) A special litigation committee may be composed of one or more disinterested and independent individuals, who may be Members. (c) After appropriate investigation, a special litigation committee may determine that it is in the best interests of the Company that the proceeding: (1) continue under the control of the plaintiff; -7- (2) continue under the control of the committee; (3) be settled on terms approved by the committee; or (4) be dismissed. (d) After making a determination under subsection (c), the special litigation committee shall file with the court a statement of its determination and its report supporting its determination, giving notice to the plaintiff and request the court to determine whether the members of the committee were disinterested and independent and whether the committee conducted its investigation and made its recommendation in good faith, independently, and with reasonable care, with the committee having the burden of proof. If the court finds that the members of the committee were disinterested and independent and that the committee acted in good faith, independently, and with reasonable care, the committee may ask the court to enforce the determination of the committee. ARTICLE IV ALLOCATIONS AND DISTRIBUTIONS 4.01 Capital Accounts. (a) A Capital Account shall be established for each Member. Each Capital Account will be increased by (i) the amount of money contributed by such Member to the Company; (ii) the Gross Asset Value of property contributed by such Member to the Company (net of liabilities secured by such contributed property that the Company is considered to assume or take subject to under Section 752 of the Code); and (iii) the Net Profits allocated to the Member. Each Capital Account will be decreased by (i) the amount of money or, to the extent permissible under Treasury Regulations § 1.704-1(b)(2)(iv)(e)(2), notes distributed to such Member by the Company; (ii) the Gross Asset Value of property distributed to such Member by the Company (net of liabilities secured by such distributed property that such Member is considered to assume or take subject to under § 752 of the Code); and (iii) the amount of Net Losses allocated to such Member. (b) In the event a Member transfers a Unit, the Capital Account associated with such transfer shall become the Capital Account of the Transferee to the extent it relates to the Unit. (c) The manner in which Capital Accounts are to be maintained pursuant to this Section 4.01 is intended, and shall be construed, so as to comply with the requirements of § 704(b) of the Code and the Treasury Regulations, and in the event there exists any inconsistency, the Code and the Treasury Regulations shall control. 4.02 Allocation of Net Profits and Net Losses. Except as provided in Section 4.03, the Net Profits and Net Losses of the Company for each Fiscal Year shall be allocated among the Members in accordance with Section 2.01 of this Agreement and among new Members as provided in relevant addendum to this Agreement. -8- 4.03 Regulatory Allocations. The Capital Accounts of the Members are to be maintained in accordance with the Code and the Treasury Regulations, including without limitation the alternative test for economic effect set forth in Treasury Regulations § 1.704- 1(b)(2)(ii)(d) and the minimum gain chargeback provisions of Treasury Regulations § 1.704-2, but nothing in this Agreement is intended to create a deficit restoration obligation or otherwise impose personal liability on a Member for a deficit in his or her Capital Account. Without limiting the generality of the foregoing: (a) If any Member unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulations §§ 1.704-1(b)(2)(ii)(d)(4), (5), or (6), which create or increase a deficit in its Adjusted Capital Account, then items of the Company's income and gain for such year and, if necessary, for subsequent years shall be specially credited to the Adjusted Capital Account of the Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the deficit in the Adjusted Capital Account as quickly as possible, provided that an allocation pursuant to this Section 4.03(a) shall be made only if and to the extent that such Member would have a deficit Adjusted Capital Account after all other allocations provided for in this Section 4.03 have been made as if Section 4.03(a) were not in this Agreement. It is the intent that this section be interpreted to comply with the alternate test for economic effect set forth in Treasury Regulations § 1.704-1(b)(2)(ii)(d). (b) In the event any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to any provision of this Agreement, if any, and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of §§ 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations, each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 4.03(b) shall be made only if and to the extent that such Member would have a deficit Adjusted Capital Account in excess of such sum after all other allocations provided for in this Section 4.03 have been made as if Section 4.03(a) and this Section 4.03(b) were not in this Agreement. (c) Except as otherwise provided in § 1.704-2(f) of the Treasury Regulations, and notwithstanding any other provision of this subsection, if there is a net decrease in partnership minimum gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member's share of the net decrease in partnership minimum gain, determined in accordance with Treasury Regulation § 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with §§ 1.704-2(f)(6) and 1.704-2(j)(2) of the Treasury Regulations. This subsection is intended to comply with the minimum gain chargeback requirement in § 1.704-2(f) of the Treasury Regulations and shall be interpreted consistently therewith. -9- (d) Except as otherwise provided in § 1.704-2(0(4) of the Treasury Regulations, and notwithstanding any other provision of this subsection, if there is a net decease in partner nonrecourse debt minimum gain attributable to a partner nonrecourse debt during any Fiscal Year, each Member who has a share of the partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with § 1.704-2(i)(5) of the Treasury Regulations, shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member's share of the net decease in partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with Treasury Regulation § 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with §§ 1.704-2(0(4) and 1.704-20(2) of the Treasury Regulations. This Section is intended to comply with the minimum gain chargeback requirement in § 1.704-2(i)(4) of the Treasury Regulations and shall be interpreted consistently therewith. (e) Nonrecourse deductions for any Fiscal Year shall be specially allocated among the Members in proportion to their respective Units in the Company. (1) Any partner nonrecourse deductions for any Fiscal Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the partner nonrecourse debt to which such partner nonrecourse deductions are attributable in accordance with Treasury Regulation § 1.704-2(i)(1). (g) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code § 734(b) or Code § 743(b) is required, pursuant to Treasury Regulation § 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Member in a manner consistent with the manner in which his or her Capital Accounts are required to be adjusted pursuant to such Section of the Treasury Regulations. (h) Notwithstanding the provisions of Section 4.02, the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Members so that, to the extent possible, without violating the requirements giving rise to the Regulatory Allocations, the net amount of such allocations of other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred. For purposes of applying the foregoing sentence, allocations pursuant to this subsection (h) shall only be made with respect to allocations pursuant to subsection (g) hereof to the extent the Manager reasonably determines that such allocations will otherwise be inconsistent with the economic agreement among the Members. -10- (i) The Manager shall have reasonable discretion, with respect to each Fiscal Year, to (i) apply the provisions of subsection (h) hereof in whatever order is likely to minimize the economic distortions that might otherwise result from the Regulatory Allocations, and (H) divide all allocations pursuant to subsection (h) hereof among the Members in a manner that is likely to minimize such economic distortions. 0) In the event that any debt of the Company is properly characterized as equity for U.S. federal income tax purposes, the holder of such debt shall be treated for purposes of maintaining Capital Accounts and for U.S. federal income tax purposes as a "partner"; Net Profit and Net Loss shall be computed without deducting any amount that would have been treated as interest if the debt had been properly classified as "debt" for U.S. federal income tax purposes; and the amount that otherwise would have been so deducted shall instead be specially allocated to holder of such recha'racterized debt: 4.04 'fax Allocations. The Company's net taxable income or loss (and each item of income, gain, loss or deduction comprising such net taxable income or loss), as determined for federal income tax purposes, shall be allocated among the Members in the same proportions as the corresponding items of "book" income, gain, loss and deduction are allocated pursuant to Sections 4.02 and 4.03 hereof. Notwithstanding the foregoing sentence, federal income tax items relating to (a) any property contributed to the Company if there was as of immediately following the contribution a difference between the Gross Asset Value of such property and the Company's adjusted tax basis in such property and (b) any property revalued pursuant to Section 10.09(d) of this Agreement if as of immediately following such revaluation there was a difference between the Gross Asset Value *of such property and the Company's adjusted tax basis in such property, shall be allocated among the Members in accordance with § 704(c) of the Code and Treasury Regulations §§ 1.704-1(b)(2)(iv)(f) and (g), 1.704-1(b)(4)(i) and 1.704-3 to take into account the difference between the Gross Asset Value and the adjusted tax basis of such property. 4.05 Distribution of Cash and Other Property. (a) Nonliquidating Distributions. After establishing reserves for current and future Company obligations (as determined in the reasonable discretion of the Manager), and such other Company investments and expenditures as determined by the Manager, money and other property available for distribution may, as determined by the Manager, be distributed from time to time to the Members. Any such distributions to the Members made by the Company before its dissolution and winding up must be pro rata based on the number of Units outstanding, except to the extent necessary to comply with any charging order in effect under Iowa Code § 489.503. Other than as provided above, a person does not have a right to a distribution. A Member's dissociation does not entitle the Member to a distribution. A Member does not have a right to demand or receive a distribution from the Company in any form other than money. The Company may distribute an asset in kind if each part of the asset is fungible with each other part and each Member receives a percentage of the asset equal in value to the Member's share of distributions. Distributed assets shall be valued at their Gross -11- Asset Value for purposes of the distribution and shall be treated for financial accounting purposes as if sold at their Gross Asset Value immediately prior to the distribution, with any resulting profits or losses allocated among the Members per their interests in such profits or losses. If a Member or Transferee becomes entitled to receive a distribution, the Member or Transferee has the status of; and is entitled to all remedies available to, a creditor of the Company with respect to the distribution. The Company's indebtedness to a Member incurred by reason of a distribution made in accordance with this section is at parity with the Company's indebtedness to its general, unsecured creditors. (b) Limitation upon Distributions. The Company shall not make a distribution if after • the distribution any of the following applies: - (1) The Company would not be able to pay its debts as they become due in the ordinary course of the Company's activities; (2) The Company's total assets would be less than the sum of its total liabilities plus the amount that would be needed, if the Company were to be dissolved, wound up, and terminated at the time of the distribution, to satisfy the preferential rights upon dissolution, winding up, and termination of Members whose preferential rights are superior to those of persons receiving the distribution; or (3) The payment of the distribution would be a default by the Company under any agreement for borrowed money by the Company, whether after notice, lapse of time or otherwise. (c) The Company may base a determination that a distribution is not prohibited under subsection (b) on financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances or on a fair valuation or other method that is reasonable under the circumstances. (d) Except as otherwise provided in subsection (f), the effect of a distribution under subsection (b) is measured as follows: (1) In the case of a distribution by purchase, redemption, or other acquisition of a Unit in the Company, as of the date money or other property is transferred or debt incurred by the Company. (2) In all other cases, as follows: (A) The date that distribution is authorized, if the payment occurs within one hundred twenty days after that date. -12- (B) The date that payment is made, if the payment occurs more than one hundred twenty days after the distribution is authorized. (e) The Company's indebtedness, including indebtedness issued in connection with or as part of a distribution, is not a liability for purposes of subsection (b) if the terms of the indebtedness provide that payment of principal and interest are made only to the extent that a distribution could be made to Members under this section. If indebtedness is issued as a distribution, each payment of principal or interest on the indebtedness is treated as a distribution, the effect of which is measured on the date the payment is made. (f) In subsection (b) "distribution" does not include amounts constituting reasonable compensation for present or past services or reasonable payments made in the ordinary course of business under a bona fide retirement plan or other benefits program. ARTICLE V TRANSFER OF UNITS 5.01 Units. A Unit is personal property. A Member may transfer his or her Units, in whole or in part, only with the prior written approval of all of the other Members. A transfer of one or more Units without the prior written approval of all of the other Members is void ab initio and shall not be recognized by the Company or any of the other Members. If a transfer is approved by all of the Members and the Transferee signs an addendum to this Agreement agreeing to be bound to its terms, the Transferee shall become a Member with the following effects: (a) The Transferee is entitled to one vote per Unit and access to records to the extent any other Member has such access; (b) The Transferee has the right to receive, in accordance with the transfer, distributions to which the transferor would otherwise be entitled. 5.02. Effectiveness. The Company need not give effect to a Transferee's rights under this article until the Company has notice of the transfer. 5.03. Membership Status. A Member does not retain the rights or obligations of a Member with respect to a Unit that has been transferred. 5.04 Liability for Capital Contributions. When a Member transfers a Unit to a person who becomes a Member with respect to the Unit, the Transferee is liable for the Member's obligations to make his or her Capital Contribution under the terms of this Agreement and for receipt of any improper distributions, known to the Transferee when the Transferee becomes a Member. -13- 5.05. Rights upon Death. If a Member dies, the deceased Member's personal representative or other legal representative may exercise the rights of a Transferee provided in Iowa Code § 489.502(3), and, for the purposes of settling the estate, the rights of a current Member under Iowa Code § 489.410. 5.06. Certain Transfers Permitted without Requiring Consent. Except as provided in Section 5.09, but anything else contained in this Agreement to the contrary notwithstanding, the transfer of Units by a Member to such Member's spouse and/or lineal descendants or to any trust established for their sole and personal benefits (any of the foregoing, a "Permitted Transfer"), whether by such Member or such Member's personal representative, shall not be subject to the restrictions on transfer of Units contemplated by this Article V. 5.07. Involuntary Transfers. (a) The term "Transfer Event" for purposes of this Article V shall mean any one or more of the following: CO the dissolution, liquidation or other termination of the existence of a Member which is not an individual, including pursuant to any merger, consolidation or other form or manner of restructuring; or (ii) the acquisition, directly or indirectly, and whether through one or more intermediaries, of more than fifty percent (50%) of the then outstanding voting stock or other voting equity or other interests of any Member which is not an individual, or of the right to vote or control the vote of such stock or other equities or interests, in either case by any person or a group of persons who were not owners of the Member when the Member became a Member of the Company; or (iii) the commencement of any proceeding (whether voluntary or involuntary) under any bankruptcy, receivership, debtor -creditor, insolvency or similar or related law by or against a Member; or (iv) a general assignment for the benefit of creditors by a Member; or (v) the insolvency of a Member; or (vi) any levy or attachment of or on any Member's Units or any interest or right represented thereby or any right or interest therein or thereunder, including, without limitations, a levy or attachment arising out of a divorce proceeding, dissolution proceeding or other similar proceeding; or (vii) the death of a Member who is an individual; or (viii) any prospective sale, conveyance, assignment or other transfer of any Units of a Member, voluntarily or involuntarily, by, through, for or by reason of any act, omission, matter, event or occurrence not contemplated by any other provision of this Article V. -14- (C. (b) In the event of the occurrence of a Transfer Event with respect to a Member, such Member (the "Affected Member") shall be deemed to have offered all of such Affected Member's Units for sale to the Company, whereupon the Company shall have sixty (60) days within which to purchase all, but not less than all, of said Units for the Purchase Price. For this purpose, the sixty (60) day period shall not be deemed to commence until the earlier of: (i) the date on which the Company gives the Affected Member written notice of the occurrence of the applicable Transfer Event, or (ii) the date on which the Company receives written notice of the occurrence of the of the. applicable Transfer Event from the Affected Member or the Affected Member's representative. The Company may assign this option to any or all other Members (the "Other Member" or "Other Members"). (c) In the event the Company and the Other Members decline or fail to purchase any Units pursuant to this Article V, and such Units are transferred to another person by virtue of or in connection with the Transfer Event, such successor person must execute an addendum to this Agreement agreeing to be bound by its terms before any right, title or interest whatsoever in the Units shall vest in the successor person, including the right to distributions and any other rights as a Transferee. Execution of an appropriate addendum will make the successor a Transferee of the Units. Execution of an appropriate addendum and the consent of all of the remaining Members will make the successor a Member. (d) If the purchase of the Units in question is being made by the Company or an Other Member prior to December 31, 2010 the term "Purchase Price" shall mean the "Book Value Per Unit" of such Units as of the last day of the calendar month which ends on or before the date of the occurrence of the Transfer Event in question and from and after January 1, 2011 "Purchase Price" shall mean the higher of "Fair Market Value Per Unit" of such Units as of the most recent appraisal (provided that any such appraisal shall be as of a date not more than twelve (12) months prior to the date of the occurrence of the Transfer Event in question) or the "Book Value Per Unit" of such Units as of the last day of the calendar month which ends on or before the date of the occurrence of such Transfer Event. "Book Value Per Unit" as used herein shall mean the total equity of the Company divided by the number of issued and outstanding Units, determined in accordance with generally accepted accounting principles consistently applied. The Company and the Members agree that the internal, unaudited financial statements of the Company shall be binding upon the Company and the Members for all such purposes. "Fair Market Value Per Unit" as used herein shall mean the fair market value of a Unit determined by annual appraisal by the Company's independent certified public accountants. Notwithstanding the foregoing, the Company and the Members may at any time establish and fix the Purchase Price by a "Certificate of Agreed Value" signed and completed by the Company and by all of the Members. If a Certificate of Agreed Value is in existence at any time when it becomes necessary to determine the "Purchase Price" for Units being purchased by the -15- Company or the other Members, and such Certificate of Agreed Value is dated less than one (1) year before the date of the occurrence of the act, matter or other circumstance giving rise to the sale and purchase of Units pursuant to this Article, then the value set forth in such Certificate of Agreed Value shall be conclusive as to establishing the Purchase Price pursuant to this Agreement and shall be accepted as the Purchase Price as of the date on which the Purchase Price is to be determined. Any Certificate of Agreed Value dated one (1) year or more before the date of the occurrence of the act, matter or other circumstance giving rise to the sale and purchase of Units pursuant to this Article shall be void and of no force or effect whatsoever. (e) The Purchase Price to be paid by the Company or by any Other Member when purchasing Units pursuant to this Article shall be payable, at the election of the Company or the other Members, as the case may be, either in cash in full on the date of settlement for and delivery of the Units (the "Settlement Date"), or in installments payable as follows: the first installment shall be in the amount of ten percent (10%) of the Purchase Price and shall be paid on the Settlement Date; with the remaining balance of the Purchase Price to be paid in sixty (60) equal monthly installments of principal commencing on the first day of the month immediately following the Settlement Date and continuing on the first day of each month thereafter. In addition to the principal payments and on the same date, payment of accrued interest shall be made on the unpaid principal balance at an annual rate of interest equal to the "Prime Rate" as published in The Wall Street Journal, or if not published, the lowest rate of interest then paid by the Company on any of its bank debt, in either case, adjusted as of the first business day of each calendar quarter. The installment payments shall be evidenced by a promissory note which shall be delivered to the Affected Member on the Settlement Date. For purposes of determining under the terms of this Agreement whether Units shall be deemed to have been rejected and for purposes of determining when Units are to be transferred and certificates for Units are to be surrendered to the Company, Units shall be considered to have been "paid for" upon payment of cash in full on the Settlement Date, if the purchaser elects that option, or upon payment of the above referenced first installment and delivery of the promissory note on the Settlement Date. In the event the Company is the beneficiary of any insurance on an Affected Member whose Units are being purchased by the Company under this Agreement pursuant to a promissory note, the proceeds of such insurance shall, within fifteen (15) days following the receipt thereof by the Company from time to time, be paid to the holder of that promissory note to the extent of and for application against the principal balance thereof and accrued interest thereon. Any such insurance proceeds in excess of the Purchase Price for the Units of the Affected Member in question shall be payable to the Company and retained for its sole benefit. When the Units of an Affected Member have been paid for, the Company shall transfer such Units on the records of the Company, and the Affected Member (or his or her legal representative, as the case may be) shall simultaneously transfer such Units to the Company or the Other Member or Members, as the case may be, and shall deliver the certificate or certificates for such Units (if any) to the Company, duly endorsed for transfer or accompanied by a duly -16- executed separate power in a form acceptable to the Company. The Company shall then cancel such certificate or certificates, and, if applicable, issue new certificates to the Other Member or Members who or which purchased the Units. The Company may treat any Units which have been purchased by the Company in such manner and fashion as the Members deem appropriate, in their discretion, including, without limitation, holding the same as authorized but unissued Units or retiring the same. The Company and the Other Members shall in all events be authorized to make payment of the Purchase Price for a deceased Member's Units to the estate of the deceased Affected Member, rather than to any particular heirs or beneficiaries of the deceased Affected Member. 5.08. Transfers in Violation of this Article. A "Noncomplying Holder" for purposes of this Article V means any person who or which became the owner or holder of any Units by purchase, gift, assignment, pledge or hypothecation, bequest or other conveyance or transfer, or by distribution of the estate of a decedent, bankrupt or of an insolvent, however liquidation of the estate of the latter be made, or by purchase or other conveyance upon foreclosure of a security interest, pledge or hypothecation, whether pursuant to sale or otherwise, or by purchase at execution or other judicial sale, or by operation of any act or process of law or equity or otherwise, or by any other means or processes whatsoever, which Units were not transferred pursuant to the consent of the Other Members. A Noncomplying Holder must first offer such Units for sale to the Company (which may assign such offer to any or all of the other Members) for the Purchase Price, as determined pursuant to Section 5.07(d), above, and the Company shall have thirty (30) days from receipt of the offer to accept. Should the Company and the Other Members decline to purchase such Units, the Noncomplying Holder must execute and deliver to the Company an addendum to this Agreement agreeing to be bound its terms before such Noncomplying Holder's holding of such Units shall be honored by the Company or accepted or registered upon its records, and before any right, title or interest whatsoever in such Units or in or under this Agreement (including the right to distributions and any other rights as a Member of the Company) shall vest in such Noncomplying Holder. Execution of an appropriate addendum will make the Noncomplying Holder a Transferee of the Units. Execution of an appropriate addendum and the consent of all of the remaining Members will make the Noncomplying Holder a Member. 5.09 7 -Eleven Transfer Limitations. Each Franchisee, during the time such person is a Franchisee, and only while a Franchisee, must be a Member of the Company. No Membership Interest of the Company may be issued, encumbered, assigned, held or transferred except with the prior written consent of 7 -Eleven, Inc., a Texas corporation, and no Membership Interest may be held by anyone other than the "Franchisee(s)," as defined in the Certificate of Organization of the Company. However, Membership Interests may be owned by the fiduciary of the estate of a deceased Member pending an approved transfer. These restrictions may not be amended, repealed or revoked except with the prior written consent of 7 -Eleven, Inc. -17- ( ARTICLE VI VOTING, QUORUM, AND MEETINGS OF MEMBERS 6.01 Voting Rights. Each Member shall have one vote for each Unit owned. All references to voting and Members in this Article VI are limited to Members who own Units. Transferees have no voting rights with respect to Units held or owned by them. 6.02 Meetings. Meetings of the Members may bp called from time to time by the Manager or by a majority of the Members. A difference arising among Members as to matters upon which the Members are required or permitted to take action shall be decided by the holders of a majority of the Units. 6.03 Place of Meetings. The Manager may designate any place as the place of any Member meeting. If the Manager does not designate the place for a Member meeting, the Member meeting shall be held at the Company's principal office. 6.04 Notice. Written notice indicating the date, time, place, and purpose of all Member meetings shall be delivered to each Member not less than ten (10) days before the date of the meeting. 6.05 Meeting of All Members. Subject to Section 6.13, if every Member is present at any meeting, even without notice, such meeting shall be valid and Members may take any action required or permitted to be taken at a Member meeting. 6.06 Record Date. The record date for purposes of determining the Members entitled to notice of or vote at any Member meeting shall be the date on which the notice is mailed. 6.07 Quorum. A majority of the Members represented in person or by proxy, shall constitute a quorum for purposes of transacting business at a meeting of the Members. 6.08 Amending this Agreement. The unanimous consent of the Members is required in order to amend this Agreement. Furthermore, this Agreement may not be revised, amended or repealed except with the prior written consent of 7 -Eleven, Inc., a Texas corporation, and any attempt to revise, amend or repeal it without such consent shall be null and void and of no effect. 6.09 Limitation. Preemptive rights, voting trusts, cumulative voting, use of proxies or agents, and voting by pledgees or receivers are prohibited. 6.10 Action by Members Without a Meeting. Any action required or permitted to be taken at a Member meeting may be taken without a meeting and without notice if the action is taken by all Members and if each such Member signs a written consent describing the action to be taken and delivered to the Manager for filing with the Company records. The record date for determining which Members may take action without a meeting shall be the date the first -18- Member signs a written consent. Action taken under this Section shall be effective when all Members entitled to vote have signed the consent, unless the consent specifies a different effective date. 6.11 Participation By Other Means. Members may participate in any Member meeting by any means of communication method that allows all Members participating therein to simultaneously hear each other. Participating in such a meeting shall constitute attendance at such meeting. 6.12 Member Representative. Any non -individual Member shall designate one individual to act as the exclusive representative of the Member for all purposes related to the Company, including, without limitation, for purposes of participation of the Member in all Member meetings, the voting by the Member and the execution of any written consent evidencing action of the Members taken without a meeting. A Member may change the identity of the Member's representative at any time and from time to time, in the Member's sole discretion, but shall provide written notice thereof to the Manager. 6.13 Waiver. (a) A Member may waive any notice required by this Agreement before or after the date and time stated in the notice. The waiver must be in writing, be signed by the Member entitled to the notice, and be delivered to the Manager. (b) A Member's attendance at a meeting: (i) waives objection to lack of notice or defective notice of the meeting, unless the Member at the beginning of the meeting or promptly upon the Member's arrival objects to holding the meeting or transacting business at the meeting, and (ii) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the Member objects to considering the matter when it is presented. ARTICLE VII DISSOCIATION 7.01 Dissociation Events. A Member is dissociated from the Company when one or more of the following events occur: (a) The Company has actual notice of the Member's express will to dissociate, but, if the Member specified a withdrawal date later than the date the Company received actual notice, on that later date; (b) The Member is expelled from the Company pursuant to Section 7.04; (c) On application by the Company, the Member is expelled as a Member by judicial order because the Member: -19- (1) Has engaged, or is engaging in, wrongful conduct that has adversely and materially affected, or will adversely and materially affect, the Company's activities; (2) Has willfully or persistently committed, or is willfully and persistently committing, a material breach of this Agreement; or (3) Has engaged in, or is engaging, in conduct relating to Company's activities which makes it not reasonably practicable to carry on the activities with the Member associated with Company; (d) In the case of a Member who is an individual, the person dies; (e) In the case of a person who is a trust or is acting as a Member by virtue of being a trustee of a trust, all of the trust's Units are distributed; (f) In the case of a person who is an estate or is acting as a Member by virtue of being a personal representative of an estate, all of the estate's Units in the Company are distributed; (g) In the case of a corporation, it has filed a certificate of dissolution or the equivalent, its charter has been revoked, or its right to conduct business has been suspended by the jurisdiction of its incorporation; (h) In the case of a limited liability company or a partnership, it has been dissolved and whose business is being wound up. (i) In the case of a Member who is not an individual, partnership, limited liability company, corporation, trust, or estate, the termination of the Member; 0) The Company participates in a merger and the Company is not the surviving entity or as a result of the merger the Member ceases to be a Member; (k) The Company participates in a conversion under the Iowa Act; (1) The Company participates in a domestication under the Iowa Act, if, as a result of the domestication, the person ceases to be a Member; or (m) The Company terminates. 7.02 Wrongful Dissociation. A Member who wrongfully dissociates from the Company is liable to the Company and, subject to Iowa Code § 489.901, to the other Members for damages caused by the dissociation. The liability is in addition to any other debt, obligation, or other liability of the Member to the Company or other Members. The Member's dissociation -20- from the Company is wrongful if the dissociation occurs before the termination of Company and any of the following apply: (a) The Member withdraws by express will; (b) The Member is expelled pursuant to Section 7.01(c) or Section 7.04; or (c) In the case of a Member who is not a trust other than a business trust, an estate, or an individual, the Member is expelled or otherwise dissociated as a Member because it willfully dissolved or terminated. 7.03 Effect of Dissociation. A Member's dissociation from the Company does not of itself discharge the person from any debt, obligation, or other liability to the Company or other Members which the dissociated Member incurred while a Member. When a Member dissociates from Company: (a) The person's right, if any, to participate as a Member in the management and conduct of Company's activities terminates and in the case of Members the Units become non- voting; and (b) Subject to Iowa Code § 489.504 and the terms of any merger, conversion or domestication to which the Company is a party, any Units owned by the person immediately before dissociation in the person's capacity as Member is owned by theperson solely as a Transferee. 7.04 Expulsion. A Member may be expelled by the unanimous consent of the other Members if: (a) It is unlawful to carry on the Company's activities with the Member associated with Company; or (b) A Member fails to make a required Capital Contribution. ARTICLE VIII RECORDS; FINANCIAL AND FISCAL AFFAIRS; TAX REPORTING 8.01 Records and Accounting. (a) The books of account of the Company shall be maintained at the Company's principal office. The Company shall maintain correct and proper books and records, entering fully and properly all Company transactions, as reasonably determined by the Manager. (b) Upon request, for any purpose reasonably related to the Member's interest as a Member, the Manager will furnish a copy of such information as is required by the Iowa Act to a Member or his or her representative; provided, however, that the information furnished to the -21- Member will not, in any event, be used for commercial purposes unrelated to the business operations of the Company. Any Member may inspect and copy or obtain from the Manager the financial statements of the Company and its tax returns. A Member shall give the Manager at least five (5) business days prior written notice for any inspection and copying permitted pursuant to this subsection by the Member or its authorized attorney or agent. The Manager may require a Member to sign a confidentiality and non -disclosure agreement before providing any of the required information. The Manager may charge the Member a reasonable fee for retrieving and copying the information. 8.02 Tax Information. The Manager will cause to be delivered, as soon as practical after the end of each Fiscal Year of the Company, to the Members and persons who were Members during such Fiscal Year (as well as to all persons treated as partners for U.S. federal income tax purposes) all information concerning the Company necessary to enable such Member or other person to prepare his or her Federal and state income tax returns for such Fiscal Year, including a statement indicating such person's share of Net Profits, Net Losses, deductions, and credits for such Fiscal Year for Federal and state income tax purposes, and the amount of any distribution made to or for the account of such person during such Fiscal Year pursuant to this Agreement. 8.03 Tax Returns. The Manager shall cause income tax returns for the Company to be prepared and timely filed in accordance with applicable law. 8.04 Elections. (a) The Manager may elect to adjust the basis of the Company assets for federal income tax purposes in accordance with § 754 of the Code in the event of a distribution of Company property as described in § 734 of the Code or a transfer by any Member as described in § 743 of the Code. (b) The Manager, in her discretion, at any time and from time to time may also make such other tax elections as they deem necessary or desirable. 8.05 Interim Closing of the Books. There shall be an interim closing of the books of account of the Company (i) at any time a taxable year of the Company shall end pursuant to the Code, and (ii) at any other time determined by the Manager to be required by good accounting practice or otherwise appropriate under the circumstances. 8.06 Tax Matters Partner. J. David Carpenter III shall be the "Tax Matters Partner" within the meaning of Code § 6231(a)(7) and is authorized to exercise the functions of a Tax Matters Partner under the Code. He shall be reimbursed for all reasonable expenses associated with his duties as Tax Matters Partner. ARTICLE IX DISSOLUTION -22- 9.01 Events Causing Dissolution. The Company is dissolved, and its activities must be wound up, upon the occurrence of any of the following: (a) the consent of all the Members; (b) the passage of 90 consecutive days during which the Company has no Members; (c) on application by a Member, the entry by a district court of an order dissolving the Company on the grounds that the conduct of all or substantially all of the Company's activities is unlawful; or it is not reasonably practicable to carry on the Company's activities in conformity with its Certificate and this Agreement certificate; or (d) on application by a Member or Transferee, the entry by a district court of an order dissolving the Company on the grounds that the Manager in control of the Company has acted, are acting, or will act in a manner that is illegal or fraudulent; or have acted or are acting in a manner that is oppressive and was, is, or will be directly harmful to the applicant. In a proceeding brought under this subsection (d); the court may order a remedy other than dissolution. 9.02 Distribution of Assets in Winding Up Company. (a) In winding up its activities, the Company must apply its assets to discharge its obligations to creditors, including Members who are creditors. (b) After the Company complies with subsection (a), any surplus must be distributed to each person owning a Unit in proportion relative to the number of Units owned by a person to the total number of Units owned by all persons, subject to any charging order in effect under Iowa Code § 489.503. (c) If the Company does not have sufficient surplus to comply with subsection (b), any surplus must be distributed among the owners of Units in proportion to the value of their respective unreturned Capital Contributions. (d) All distributions made under subsections (b) and (c) must be paid in money. 9.03 Business After Dissolution. After dissolution, the Company shall not engage in any business except that necessary to wind up the Company's affairs pursuant to Iowa Code § 489.702 and to protect the value of and distribute the Company's assets. 9.04 Net Profits and Net Losses During Winding Up. Net Profits and Net Losses earned or incurred during the course of the winding up of the Company shall be credited or debited to the Members in the same proportion as before dissolution. 9.05 Management of the Company After Dissolution. The Manager shall continue to manage the Company after dissolution. -23- (( 9.06 Winding Up. Upon dissolution each Member shall look solely to the assets of the Company for the return of its Capital Account. If the Company property remaining after the payment or discharge of the debts and liabilities of the Company is insufficient to return to the Capital Account of each Member, such Member shall have no recourse against other Members, in his capacity as such. Further, no Member shall be required to restore any deficit in his or her Capital Account and such deficit shall not be treated as an asset of the Company. The winding, up of the affairs of the Company and the distribution of its assets shall be conducted exclusively by the Manager, who is hereby authorized to take all actions necessary to accomplish such distribution, including without limitation, selling any Company assets the Manager deems necessary or appropriate to sell. ARTICLE X DEFINITIONS As used in this Agreement, the following terms shall have the following meanings: 10.01 "Adjusted Capital Account" shall mean, with respect to each Member, the Member's Capital Account as adjusted by the items described in §§ 1.704-2(g)(1), 1.704-2(i)(5) and 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Treasury Regulations. 10.02 "Agreement" shall mean this Operating Agreement, as originally executed or as amended, modified, supplemented or restated from time to time. 10.03 "Capital Account" shall have the meaning ascribed to it in Section 4.01 of this Agreement. 10.04 "Capital Contribution" shall mean in the case of any Member as of any date of determination, the aggregate amount of cash and fair market value of any non -cash property (net of any liabilities assumed by the Company or secured by such property) that such Member shall be credited with contributing, directly or by assignment, to the Company on or prior to such date. 10.05 "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time and any successor statute or subsequent codification or recodification of the federal income tax laws of the United States. 10.06 "Company" shall mean CARPCO, LLC, as such limited liability company may from time to time be constituted. 10.07 "Iowa Act" shall mean the Iowa Revised Uniform Limited Liability Company Act, Chapter 489 of the Iowa Code, as amended. 10.08 "Fiscal Year" shall mean the twelve-month period ending December 31. 10.08A"Franchisee(s)" shall mean and include (a) the original signatory(ies), as franchisee, to the 7 -Eleven Store Franchise Agreement(s) with 7 -Eleven, Inc, a Texas corporation ("Franchise Agreement(s)") intended to be, or having been, assigned to this -24- Company; and (b) anyone added as a franchisee by amendment to the Franchise Agreement(s); however, "Franchisee" shall exclude anyone who was an original signatory or who was later added as a franchisee but who has subsequently been deleted as a franchisee by amendment to the Franchise Agreement(s). 10.09 "Gross Asset Value" shall mean, with respect to any asset, the asset's adjusted basis for federal income tax purposes, except as follows: (a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset, as determined by the Manager; (b) The Gross Asset Value of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Manager, as of the following times: (i) the contribution of more than de minimis additional capital by any new Member or existing Member; (ii) the distribution by the Company to a Member of more than a de minim's amount of property as consideration for the Member's Capital Contribution; and (iii) the liquidation of the Company within the meaning of § 1.704- 1(b)(2)(ii)(g) of the Treasury Regulations; provided, however, that adjustments pursuant to the preceding clauses (i) and (ii) shall be made only if the Manager determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members; (c) The Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross fair market value of such asset on the date of distribution, as determined by the Manager; and (d) The Gross Asset Values of Company assets shall be increased or decreased, as the case may be, to reflect any adjustments to the adjusted basis of such assets pursuant to § 734(b) or § 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to § 1.704- 1(b)(2)(iv)(m) of the Treasury Regulations; provided, however, that Gross Asset Values shall not be adjusted pursuant to clause (d) to the extent that the Manager determines that an adjustment pursuant to this clause (d) is not necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (d). If the Gross Asset Value of an asset has been determined or adjusted pursuant to of this Agreement, such Gross Asset Value shall thereafter be adjusted by the depreciation taken into account with respect to such asset for purposes of computing Net Profits and Net Losses. 10.10 "Manager" shall mean the person appointed pursuant to Section 3.01. 10.11 "Member" shall mean a person who is an owner of Units and has met all the requirements of membership set forth in Article V of this Agreement. -25- 10.12 "Net Profits" shall mean, for each Fiscal Year, the net taxable income of the Company determined in accordance with the income tax basis method of accounting and as reported, separately and in the aggregate, as appropriate, on the Company's information return filed for United States federal income tax purposes, less any expenditures not deductible in computing the Company's taxable income and not properly chargeable to capital account under § 705(a)(2)(B) of the Code plus any tax-exempt income of the Company; adjusted in the event that the Gross Asset Value of any asset differs from its adjusted tax basis to compute gain or loss and depreciation or amortization in respect of such property by reference to such Gross Asset Value; and adjusted, in the event that any asset is revalued pursuant to Section 10.09(b) or (d), to include as gain or loss the net increase or decrease in the Gross Asset Value of the asset. 10.13 "Net Losses" shall mean, for each Fiscal Year, the net taxable loss of the Company determined in accordance with the income tax basis method of accounting and as reported, separately and in the aggregate, as appropriate, on the Company's information return filed for United States federal income tax purposes, plus any expenditures not deductible in computing the Company's taxable income and not properly chargeable to capital account under § 705(a)(2)(B) of the Code less any tax-exempt income of the Company; adjusted in the event that the Gross Asset Value of any asset differs from its adjusted tax basis to compute gain or loss and depreciation or amortization in respect of such property by reference to such Gross Asset Value; and adjusted, in the event that any asset is revalued pursuant to Section 10.09(6) or (d), to include as gain or loss the net increase or decrease in the Gross Asset Value of the asset. 10.14 "Officer" shall have the meaning ascribed to it in Section 3.02 of this Agreement. 10.15 "Regulatory Allocations" shall mean the allocations pursuant to Section 4.03(a) through (i) of this Agreement. 10.16 "Transferee" shall mean a holder of one or more Units pursuant to a transfer who signs an appropriate addendum to be bound by this Agreement but who is not a Member. 10.17 "Treasury Regulations" shall mean the regulations of the United States Department of the Treasury pertaining to the income tax, as from time to time in force. 10.18 "Units" represent a Member's or Transferee's share of equity ownership in the Company relative to all other Members and Transferees, the right to receive distributions from the Company in accordance with this Agreement, and for Members, the right to participate in management to the extent permitted by this Agreement. ARTICLE XI MISCELLANEOUS 11.01 Notices. Any notice, offer, consent or other communication required or permitted to be given or made hereunder shall be in writing and will be deemed to have been sufficiently delivered (a) three business days after the date mailed by certified mail, return receipt requested, postage prepaid, or (b) when delivered by a nationally recognized overnight delivery service -26- (receipt requested) or (c) when delivered personally to the party (or an officer of the party) to whom the same is directed, or (d) when the electronic transmission of electronic mail or fax is successfully completed. 11.02 Possible Restrictions. Notwithstanding anything to the contrary contained in this Agreement, in the event of (a) the enactment (or imminent enactment) of any legislation, (b) the publication of any temporary or fmal regulation by the United States Department of the Treasury, (c) any ruling by the Internal Revenue Service or (d) any judicial decision that, in any such case, in the opinion of counsel for the Company, would result in the taxation of the Company as an association taxable as a corporation or would otherwise result in the Company being taxed as an entity for federal income tax purposes, then the Manager may impose such restrictions as may be required, in the opinion of counsel, to prevent the Company for Federal income tax purposes from being taxed as an association taxable as a corporation or otherwise as an entity, including, without limitation, making any amendments to this Agreement as the Manager in her sole discretion may determine to be necessary or appropriate to impose such restrictions. 11.03 Governing Law; Successors. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa and, subject to the restrictions on transferability set forth in this Agreement, shall bind and inure to the benefit of the heirs, executors, personal representatives, successors and assigns of the Members. The rights and liabilities of the Members under this Agreement shall be as provided by Iowa law. 11.04 Entire Agreement. This Agreement is the sole operating agreement of the Company and constitutes the entire agreement among the parties relating to its subject matter; this Agreement supersedes any prior agreements or understandings between the parties, oral or written relating to its subject matter, all of which are hereby canceled. This Agreement may not be modified or amended except in writing with the unanimous consent of the Members. 11.05 Headings, etc. The Article and Section headings in this Agreement are inserted for convenience of reference only and shall not affect interpretation of this Agreement. Whenever the context shall require, each term stated in either the singular or plural shall include the singular and the plural, and masculine or neuter pronouns shall include the masculine, the feminine and the neuter. 11.06 No Waiver. No failure or delay on the part of any Member in exercising any rights under this Agreement, or in insisting on strict performance of any covenant or condition contained in this Agreement, shall operate as a waiver of any of such Member's rights hereunder. 11.07 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 11.08 Assignment. Other than Units as permitted by this Agreement, no assignment of any rights or delegation of any obligations provided for in this Agreement shall be made by any Member without the prior written consent of the other Members. -27- 11.09 No Reliance. No third party is entitled to rely on any of the representations, warranties, and agreements of the Members contained in this Agreement; and the Members assume no liability to any third party because of any such reliance. 11.10 Interpretation. In this Agreement, unless a clear contrary intention appears: (a) The singular number includes the plural number and vice versa; (b) Reference to any person includes such person's successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) Reference to any gender includes each other gender; (d) Reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) Reference to any legal requirement means such legal requirement as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and reference to any section or other provision of any legal requirement means that provision of such legal requirement from time to time in effect and constituting the substantive amendment, modification, codification, replacement or re-enactment of such section or other provision; (f) "Hereunder," "hereof,""hereto," and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof; (g) "Including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term; (h) "Or" is used in the inclusive sense of "and/or" unless the context otherwise requires; (i) With respect to the determination of any period of time, "from" means "from and including" and "to" means "to but excluding"; (j) References to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; and (k) The term "person" and words importing persons shall include firms, associations, partnerships, limited partnerships, joint ventures, trusts, corporations, limited liability companies and all other entities, including public or governmental bodies, agencies or instrumentalities, as well as natural persons. 11.11 Consent to Jurisdiction. Each of the parties hereby irrevocably submits to the non-exclusive jurisdiction of any United States Federal District Court for the Southern District of Iowa or the Iowa District court sitting in Des Moines, Iowa in any action or proceeding arising out of or relating to this Agreement or any promissory note given pursuant hereto, and each party hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such United States Federal or Iowa District court. Each of the parties irrevocably waives any objection, including, without limitation, any objection to the laying of venue or based on the grounds of forum no conveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective courts and jurisdictions. Each of the parties irrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the State of Iowa by the delivery of copies of such process to each party, at its address specified for Notices to be given hereunder or by certified mail direct to such address. 11.12 Waiver of Jury Trial. Each of the parties hereby irrevocably and unconditionally waives all right to a jury trial with respect to and in any claim, counterclaim, action, proceeding, -28- JDavid Carpenter, HI demand or other matter whatsoever arising out of or relating to this Agreement or any promissory note given pursuant to this Agreement. IN WITNESS WHEREOF, MI of the Members have executed this Agreement effective as of the 23rd day of March, 2011. Jennife Ca enter -29- OFFICE OF THE SECRETARY OF STATE OF THE STATE OF COLORADO CERTIFICATE I, Wayne W. Williams, 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 02/12/2015 that have been posted, and by documents delivered to this office electronically through 02/13/2015 @ 14:40:15, I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, authenticated, issued, delivered and communicated this official certificate at Denver, Colorado on 02/13/2015 @ 14:40:15 pursuant to and in accordance with applicable law. This certificate is assigned Confirmation Number 9094454. Secretary of State of the State of Colorado ****+*************************************+**End of Certifieate*******************+***++******************* 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 Certificate Confirmation Page of the Secretary of State's Web site, hnp://www.sos.state,co.us/biz/CertificateSearchCriteria.do entering the certificate's confirmation number displayed on the certificate, and following the instructions displayed. Confirming the issuance of a certificate is merely optional and is not necessary to the valid and effective issuance ofa certificate. For more information, visit our Web site, http://www.sosstate,co.us/click Business Center and select "Frequently Asked Questions." CERT GS_F Revised 08/102008 STATE OF COLORADO 4 RTMENT OF REVENUE irEnforcement Division ness Location Pierce Street, Suite 108A mood, Colorado 80214 e (303) 205-2300 [303) 205-2341 ii: LED@dor,state,co,us site; www.colorado qov/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 Burmanla 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: t. 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. 3. 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 additionallliicensed.Iocatio.ns,.y.ou 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 authoritiesWill not require you again to submit fingerprint cards to them if you have already submitted such documents to the Division. This letterwill serve to inform the Ideal 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-l) if manager's registration is required. Sincerely, 0-13044462,tiick: Don Burmania Division Director 7-ElevenMF.doc ]R 8404-4 (01/05/05) eoLO RADO DEPARTMENT of REVENUE _oUOR ENFORCEMENT DIVISION tea 1 PIERCE STREET RM 1 oaA DENVER Co 60251 FILL ON BEHALF OF TICE APPLICANT BY DILL DILL CARR SI ONBRAPER & HUTCHINGS. P.C. (303) 777.3737 INDIVIDUAL HISTORY RECORD io be completed by each individual applicant, all general partners ofa 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 with a 10% (or more) ownership interest in such company and all managers of a Hotel and Restaurant or a Tavern License. NOTICE: This individual history record provides basic information which is necessary for the licensing authority investigation. All questions must be answered in their entirety or your application may be.delayed or not processed. EVERY answer you give will be checked for its truthfulness. A deliberate falsehood or omission will jeopardize the application as such falsehood within itself constitutes evidence regarding the character of the applicant. 1. Name of Business 7 —Eleven, Inc: 2. Your Full Name (last, first, middle) DePinto , Josenh Michael 3. List any other names you have used. None 4. Mailing address Of different from residence) Home Telephone same as below. (817) 48? -3376 5. List all residence addresses below. Include current and previous addresses for the past five years, STREET AND NUMBER CITY, STATE, ZIP Current Southlake TX 76092 5 /2002 112E Merlot Dr Previous 502 Wfnyan Lane 6. List all current and former employers or businesses engaged In within the last five years (Attach separate sheet if necessary) POSITION HELD NAME OF EMPLOYER 7 —Eleven Inc. Gamestop Corn. 7 —Eleven. Inc. Louisville, KY 40223 8/1983 ADDRESS (STREET, NUMBER, CITY, STATE, ZIP) 2711 N. Haskell ave , D llas TX 76051 625 Westport Pkwy. Grapevine, TX 1h204 2711 N. Haskell Ave., Dallas, TX CEO1Pres:;dent 'President Vide President 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 Present 5/2002 12/05 12/05 NAME OF LICENSEE 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. x Yes No Mr. DePinto was on previous Master File for 7 —Eleven, Inc. 3-2005 to 3-2005 corporate officer. as 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.7 If yes, explain in detail, Yes No D. Have you ever been convicted of a crime or recelved a suspended sentence, deferred sentence, or forfeited bail for any offense in criminal or military court r do you have any charges pending? Include arrests for DUI and DWAI, (If yes, explain in detail.) :Yes No 1, Are you ��currently under probation (supervised o; unsupervised), parole, or completing the requirements of a deferred sentence? (if yes, explain in detail.) ]Yes el Z. Have you ever had any STATE issued licenses suspended, revoked, or denied including a drivers license? (If yes, explain in detail.) ]Yes D. -No PERSONAL AND FINANCIAL INFORMATION Unless otherwise provided by law in24-72-204 C.R,S., information 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 12-47-30 3a. Date of Birth b. Social Security Number SSN c, Place of Birth Chicago, IL d, L9, Cit PT(es es' Naturalized, . If State where N/A ., f. When N/A . . g. Name of District Court N/A Naturalization Certificate i. Date Certification If , Number N/A . of NIA . . j. an Alien, Give Allen's Registration Card Number N/A . . .. . . k. Permanent ResidencE N/A . I. Height Weight Color o. Eye Color Sex Race 5'10' in. 2O5 n. Hair Brown Blue p. M q. ' C r. Do,you have a current Driver's License? If so, give number a [Yes No 4. Financial Information. .-Total purchase price $ N/A artners hip, limited liability company, other $ NIA ¢en? No Card Number d state (if buying an existing business) or.)nvesiment 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, took 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 'ype:- Cash, Services or Equipment N/A Source Name of Bank; Account Type and Number N/A Amount N/A 1. Loan Information (attach copies of all notes or loans) Name of Lender and Account Number Address Term, Security N/A N/A N/A N/A 15. Give name of bankwhere business account will be maintained; Account Name. and Account Number; and the name or names of persons authr,ri-,ari to r{row thoronn Amount N/A N/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. - - Author ed Sinap ir 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 3-20( 2 OR 8404-I (01/06/05) COLORADO DEPARTMENT OF REVENUE LIQUOR ENFORCEMENT DIVISION 1881 PIERCE STREET RM 108A DENVER CD 90261 •�.- L nr. APPLICANT SY DILL es I, CARE STON13RAKER & HUTCHINGS. P.C. (303)777-3737 INDIVIDUAL HISTORY RECORD To be completed by each individual applicant, all general partners of a partnership, and limited partners owning 10% (or more) of a partnership; all officers and directors of a corporation, and stockholders of a corporation owning 10% (or more) of the stock of such corporation; all limited liability company MANAGING members, and officers or other limited liability company members with a 10% (or more) ownership interest in such company and all managers of a Hotel and Restaurant or a Tavern License, NOTICE: This individual history, record provides basic information which is necessary for the licensing authority investigation, All questions must be answered in their entirety or your 'application may be delayed'or not processed. EVERY answer you give Will be checked for its truthfulness. A deliberate falsehood or omission will jeopardize the application as such falsehood within itself constitutes evidence regarding the character of the applicant. 1. Name of Business 7—Elevej 2. Your Full Name (last, first, middle) Reynolds, Stanley Wayne 4. Mailing address (if different from residence) same as below 3. List any other names you have used. None 5. List all residence addresses below. Include current and previous addresses for the past five years. STREET AND NUMBER CITY, STATE, ZIP FROM • Current . 429 Avalon Lane Coppell, TX 75019 6/2002 Previous 705 Post Oak Drive Coppell, TX 75019 1/1994 6. List all current and former employers or businesses engaged in within the last five years (Attach separate sheet if necessary) NAME OF EMPLOYER ADDRESS (STREET, NUMBER, CITY, STATE, ZIP) POSITION HELD FR 7a.r r1 Inn • 2711 N. Haskell Ave, Dallas, TX75204 SUP, C,F0 (various) 11/ 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 - poslTloN HELD NAME OF 1 None N/A N/A N/A 8. Have you ever applied for, held, or had an interest in a State of Colorado inventory, to any liquor or beer licensee? If yes, answer in detail. Liquor or Beer License, or loaned money, furniture or fix 9. Have you ever received a violation notice suspension or revocation, for a liquor law violation, or have you applied tor or been den license anywhere in the U.S.? If yes, explain in detail. Yes RI No TO Present 6/2002 res, equipment or M 997 ICENSEE rase ed a liquor or boar t 0. Have you ever been convicted of a crime or received a suspended sentence, deferred sentence, or forfeited bail for any o r do you have any charges pending? Include arrests for DUI and DWAI. (If yes, explain in detail.) ]Yes No ense In criminal or military cou 1, Are you currently under probation (supervised or unsupervised), explain in data) parole, or completing the requirements of a deferred sentence? (if yes, ail.) :Yes No ® ?...Have you ever had any STATE issued licenses suspended, revoked, or denied including a drivers license? (If yes, explain in detail.) ]Yes ® No PERSONAL AND FINANCIAL INFORMATION Unless otherwise provided by law in 24-72-204 C,R.S., information provlded'below will be treated as CONFIDENTIAL. :olorado liquor licensing authorities require thefollowing personal information In order to determine your suitability forllcensure pursuant t 12-47-307 C.D.S. o a. Date of Birth 3/ Social Security Number SSN 432- Place of Birth Arkadelphia, :A'tan 5a5 d. U.s ®Y, If Naturalized, State where N/A f. When . .N/A. - g- Name of District Court N/A Naturalization N/A • Certifica e Number i, Date of Certification N/A j. If an Alien, Give Alien's Registration Card Number N/A . • k. Permanent Resid N/A h Height ' 11" tn. Weight 180 n: Hair Color Blonde o, Eye Color Green p. Sex . M q, Race • C •. r: Do you have a current Driver's License? TX Information. Citizen? . s No nce Card Number rand state Total purchase price $ N/A (if buying an existing business) or investment being made by the applying entity, corporation, lnership, limited liability company, other $ N/A List 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 _ .. _, .-- __,..,,., _, ,,,..,,,,,ent. ,,,U „a„.. a,:cou,u JD, toe 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 N/A N/A . Loan Information (attach copies of all notes or loans) lame of Lender and Account Number b Address Term Security N/A N/A N/A N/A Give name of ark where business account will be malntatned;Account Name and Account Number; and the name or names of e n„thnrin,r1 to rir,w therann - persons N/A Oath o₹ Applicant leclare under penalty of perjury in the second degree that this application and all attachments are true, correct, and complete to the best of y knowledge. / O d Title thorized Si a�u •/(ao-- Data O QLurwv t. vernn I rn R.-. LIQUOR EN FOROEMENT DIVISION 1881 PIERCE STREET R M 108A DENVER CO 80251 INDIVIDUAL HISTORY RECORD To be completed by the following persons, as applicable; sole proprietors; general partners regardless of percentage ownership, and limited partners owning 10% or more of the partnership; all principal officers of a corporation, all directors of a corporation, and any stockholder of a corporation owning 10% or more of the outstanding stock; managing members or officers of a limited liability company, and members owning 10% or more of the company; and any intended registered managerof Hotel and Restaurant or Tavern class of retail license, NOTICE; This individual history record requires information that is necessary for the licensing investigation or inquiry, All questions must be answered in their entirety or the license application may be delayed or denied, If a question is not applicable, please indicate so by."N/A". Any deliberate misrepresentation or material omission may jeopardize the license application. 1. Name of Business 7 -Eleven, Inc. 2. Your Full Name (last, first, middle) Gasaway, Rankin Lee 4. Mailing address Of different from residence) 1.722 Routh St., #1000, Dallas, TX 75201 3. List any other names you have used. None 5. List' current residence address. Include any previous addresses within the lastlive years (attach separate sheet If ne • STREET AND NUMBER CITY, STATE, ZIP FROM Current • 6619 Duper Court Dallas, TX 75252 3/1998 Previous B. List all employment within the last five years. Include -any self emolovment. ran_r..t, ssr,,,fe .a,.,,,, ,s— ..... A NAME OF EMPLOYER OR BUSINESS 7 -Eleven, Inc, 7 -Eleven, Inc,. 1722 Routh St. #1000 7 -Eleven, Inc, Dallas, TX 75201 7. List the names) of relatives working in or holding a financial interest in the Colorado alcohol be NAME OF RELATIVE RELATIONSHIPTO YOU POSITION'HELD NAME OF L N/A - None - N/A N/A N/ ADDRESS (STRET, NUMBER; CITY, STATE, ZIP) 1722 Routh St, #1000 Dallas„_TX 75241 1722 Routh St. #1000 • Dallas, TX 75201 POSITION HELD SVP/GC/SEC TO present FROM, .8/12 VP/DEP GC 2/08 SR COUNSEL 12/91 TO present 8/12 2/08 CENSER 8- Have you ever applied for, held, or had an interest in a Colorado Liquor or Beer License, or loaned money, furniture, fixtures, equipment or inventory to any licensee? If yes, answer in detail. [Yes 1{ No • 9. Have you ever ee the United selved i Stt on n it ye.,explain in suspension, or or revocation for a liquor law violation, or have you applied for or been denied a liquor or beet license any❑Yes X No or do you have any charges penomg'l iryes, explain In detail.) ❑yes No • ci ucu o, muenee eau for any onehse in criminal or military court Authorized 59 ii. Are you currently under probation (supervised or unsupervised), parole, or completing he requirements of a deferred sentence? (if yes, explain in detail.) Dyes ® No• 12. Have you ever bad any professional license suspended, revoked, or dented? (If yes, ekplaln in detail.) Elljret 13a. Date of Birth e. If Naturalized, Slate where • Mlle h. Naturalization Certificate Number N/A_ PERSONAL AND FINANCIAL INFORMATION Unless 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 identification purposes. b, Sgelal Security Number SSN • c. Place of Birth Augusta, GA f. When N/A g. Name of District Court N/A k. Permanent Residence Card Number NIA • a. Do you have a current Driver's License? If so, glue number and state ®Yes ❑No ' t: Height 6'O 14. Financial Information. 0.00 a. Total purchase price $ (if buying an existing business) or investment being made by the applying entity, co partnership. limited liability company, other N/A' — officer change solely �'� rporation, b. List the total amountofyour investment In this business Including any notes, loans, cash, services or equipment, operating capital, stock purchases orfees paid $ 0.00 — No personal funds being invested a, provide details of the Investment described in14.b. You must account for all of t Type: Cash,Seivices or Equipment -----""'_""'""""".—.."`eeY°"" Source None N/A d. Loan Information (attach Copies of all notes or loans) m, Weight 210 it Hair Color BROWN i. Date of Certification N/A. o. Eye Color p. Sex BLUE to J, If an Alien, Give Alien's Registration Ca d Number N/A . q. Race d. U•S. Cilizen4 Yes ENo Name of Lender Address Term None N/A N/A Security N/A Amount Amount Oath of Applicant l declare underpenalty of perjury that this application and all attachments are true, correct, and complete to the best of my knowledge re Title SVP/GC/SEC DatDY I °�i cZ 7-cieven, 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 Officers: Joseph 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 and Chief Financial Officer Officers and Directors Qualified on State -Approved Master File: Joseph M. DePinto Rankin L. Gasaway Stanley W. Reynolds 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 21 day of AtliqS 2012. 4.4j, ,1_4/W4-1 ' Asd stant 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 QL6 254' u ' 2012. NOTARY PUBLIC l�l Karen Pennell Pa!t Stato of yes L+Ceo'dn,Expi s OSI0 /2015 p:. 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. Fenton'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; o Stanley W. Reynolds, Executive Vice Presideht 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. Date of issuance November 9, 2005; January 1, 2010; and November 21, 2010* TOTAL SHARES OUTSTANDING: 130,313,449 Number of shares owned \cri Address c/o Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County, DE Shareholder name • SEJ Asset Management & Investment Company ) \ §\ \\)§ /I0 \00 :J\3 u t) Co - o tn .4-a o °.o yw;5� \/J4) \\0cn \ /u\5� °\/\� \.§3»\ k��\\ &aao; 2312) B/§/0) . ti /\\ \\§5$ a)G�\( \\\6 r§y=% \e2}\ o !§}w �7�°\ /f)\/ §oats #\a0• )e/§\ as as ) ri ©G§~ 4a C'4 ®\\\§ \/j/\ co / ACTION BY WRIt 1EN CONSENT OF THE DIRECTORS IN LIEU OF THE FIRST MEETING OF THE BOARD OF DIRECTORS OF SRI. ASSET MANAGEMENT & INVESTMENT COMPANY a Delaware corporation October 1 9' , 2012 The undersigned, being the directors of SEJ Asset Management & Investment Company, a Delaware corporation (the "Corporation"), acting in accordance with Section 141(1) 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 P7 , 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 certificate immediately following the last page thereof and to cause said Bylaws, together with such certificate, to be placed in the Minute Book. ELECTION OF OltiktCERS 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 Name President and Chief Executive Officer Vice President Treasurer Secretary Ryoji Sakai Kazuo Otsuka Akihiko Shimizu Hisataka Noguchi CHAIRMAN RESOLVED, that Toshifumi 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 best 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 JNCERTIFICATED WHEREAS, it is deemed to be in the best interests of the Corporation that the shares of the Coipotttiatt be hues; tifieated. • 2 NOW, THEREFORE, BE IT RESOLVED, that the shares of the Corporation shall be uncertificated. 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 shares 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 Common 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: Toshi " 1 Name: o Ot sutra U Name: Masaaki Kamata Name. Takashi Hira SIGNATURE PAGE TO SEJ ASSET MANAGEMENT & INVESTMENT COMPANY INITIAL ORGANIZATIONAL RESOLUTIONS Suzuki The first State PAGE l 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 8100 121136653 You may verify this certificate online at corp.delaware.gov/authver.shtml ` Jeffrey W. Bullock, Secretary of State e� AUTHEN2`S C•-.TION: 9921837 DATE: 10-17-12 State of Delaware Secretary of State Division of Corporations Delivered 09:28 AM 10/17/2012 FITWD 09:25 AM 10/17/2012 SRV 121136653 - 5228796 FILE CERTIFICATE OF INCORPORATION OF SEJ ASSET MANAGEMENT & INVESTMENT COMPANY ARTICLE I NAME OF CORPORATION The name of the Corporation (the "Corporation") is: SEJ Asset Management & Investment Company ARTICLE II 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, and 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) by the 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 pari 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 pari 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 or omission 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, Dunn & Crotchet 200 Park Avenue, 48th Floor New York, New York 10166 [The remainder of this page has been intentionally left blank.] 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 DIRECTORS 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 Directors 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 obligations pursuant to the State of Colorado'Liquor Code as well as regulations promulgatedpursuant thereto; and WHEREAS, the Company had previously designated five officers and directors to be "qualified persons" of the Company with respect to the 3.2% beer licenses outstanding in fhe State of Colorado pursuant to the "Master File" system otthe State of Colorado Liquor Enforcement Division; and WHEREAS, two of those five officers and directors have resigned from the ,• Company: Kazuo Otsuka as of December 31, 2007; and Shiro Ozekj 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 M. DePinto, Director, President and Chief Executive Officer; 9 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 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 aft 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. IN. WITNESS WHEREOF, the undersigned have executed this Unanimous Consent, and the actions contemplated hereunder, shall be deemed approved by the Hoard as of the Bs' day of November, 2010, and effective upon'approval by the State of Colorado Liquor Enforcement ❑Msioh. To mimi Suzuki Jay W. Chaff Joseph M. DePinto 174114v1 2 :v 05 2010 0:18PH HP LHSERJET FOX 2033217092 pate 1 FURTHER RESOLVED,. that thePresident and Chief Executive.ptficer, any Vice Pes(derit(induding Executive and Sank* Vice Presidents), the Secretary,. the -Treasurer and the Controller are each hereby authorized and dirsLteJ, it thal)arne,and on behalf of the Company,,to do or catLe to be done any and all such`a`cts and thInga.anti to execute and deliver any and.all such doctnnents and p'apera'as such officer may deem necessary or appropriate to carry Into Off Athe:full intent and purpose ofthe.fa egotng resolutions, IN WITNESS.WNEREOP, the undersigned have executed this Unanitn❑us Consent, and the actions cohtenipleted hereunder, shall be deemed approved byr the Board as of the &j day or November, 2010, and effective upon approval by the State of Colorado Liquor Enforcement Division. Joseph M, DePinto 174114v1 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 nebessary 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 approved by the Board as of the 8th day of November, 2010, and effective upon approval -by the State of Colorado Liquor Enforcement Division: Toshifumi Suzuki Masaaki Kamata Jay W. Chai Nobutake Sato DePinto 1741i5V1 UNANIMOUS CONSENT OF THE 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 Finance' LLC with and into SEI WHEREAS, it is proposed that, pursuant to that certain Agreement and Plan of Merger by and among SET Service LLC, a Delaware limited liability company ("SEJ Service"), SEJ Finance LLC, a Delaware limited liability company ("SEJ Finance" and together with SEJ 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 SEI to be the surviving entity in the merger (the "Merge?'); and WHEREAS, to effect the Merger, it is proposed that SEI 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 SEI; NOW, THEREFORE, BE IT RESOLVED, that the Merger is hereby approved in all 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 SET for approval with the recommendation from the Board that the shareholders of SET approve the Merger Documents; and FURTHER RESOLVED, 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 SET, acting alone or together, are hereby authorized to execute the Merger 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 and deliver, in the name of and on behalf of SEI, 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 SEI, 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. of Further Action RESOLVED, that all actions of any kind heretofore taken by any officer of SEI 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 SEI, 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. This Unanimous Consent maybe 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 instrument. 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 that date. Toshifumi Jay W. Chai Joseph M. DePinto Masaaki Kamata 6_ Nobutake Sato iv 13 09 09:34p Jay Chai 203625-5574 p,1 This Unaiimaus Consent may be executed in two or muse counterparts, each of which shall- be deemed an original, but all of which together shall constitute one and the sante instncttt IN WITNESS WHEREOF, the undersigned have executed this Unanimous Constant as of the 24¢' day of November, 2069, and unless otherwise specified herein, any actions contemplated under this Unaninmaus Consent will be deemed effective as of that date. 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 instrument. 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 that date. Toshifurni Suzuki fay W. Chat Masaaki Kamata Nobutake Sato EXHIBIT A Merger Agreement AGREEMENT AND PLAN OF MERGER OF SEJ 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 SEJ Service LLC, a Delaware limited liability company ("SEJ Service"), SET Finance LLC, a Delaware limited liability company ("SEJ Finance"), and 7 -Eleven, Inc., a Texas corporation ("7 -Eleven" and collectively with SEJ Service and SEJ Finance, the "Parties"). WHEREAS, it is proposed that both SET Service and SEJ Finance merge with and into 7 - Eleven upon the terms and subject tothe conditions set forth herein and in accordance with 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 ("SEJ 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 SET Service have approved this Agreement and the Merger; and WHEREAS, the SET Finance Sole Member and the Board of Managers of SEJ 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, SEJ 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 CTBCA" ); respectively; NOW, THEREFORE, in consideration of the mutual promises set forth 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 SRI Service and SET Finance shall be merged with and into 7 -Eleven, the separate organizational 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" SEJ 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 respective 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 Common Stock, $0.0001 par value, of 7 -Eleven ("7 -Eleven Common Stock"); (2) The membership interests of SEJ Finance shall be cancelled and converted into the right of the SEJ 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 SEJ Service and SEJ 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 SEJ Service or SEJ 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 interests upon the property of the Surviving Entity or either of the nor any liens or security 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 acid 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 the 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 11 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 TBCA, 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 Amendment 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 manner as may be 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 anytime prior to the Effective Time. In the event of the termination of this Agreement, this Agreement shall forthwith become void and there shall 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 maybe 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] IN WITNESS WHEREOF, the undersigned have each caused this Ageement to be executed by duly authorized officers as of the date first written above. SEJ SERVICE LLC, a Delaware limited liability company By: /s/ 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 7 -ELEVEN, INC., a Texas corporation By: /s/ Joseph M. DePinto Joseph M. DePinto President and CEO EXHIBIT B Articles of Merger CERTIFICATE OF MERGER MERGING SEJ SERVICE LLC (a Delaware limited liability company) AND SEJ 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 Company 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 S ervice 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 or proceeding 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 p.m., Eastern on December 31, 2009 (the "Effective Time"). 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: /s/ Joseph M. DePinto Joseph M. DePinto President and CEO Standard Time, has caused this 24, 2009, to be ARTICLES OF MERGER OF SEJ SERVICE LLC (a Delaware limited liability company) AND SEJ FINANCE 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) SEJ Service LLC, a Delaware limited liability company ("SEJ Service"), (b) SRI Finance LLC, a Delaware limited liability company ("SEJ Finance," and collectively with SEJ 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 75261, 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 1'BCA Article 9.10(A)(6) and all required written noticesof suchaction by written consent has been given as required by the TBCA and the bylaws of the Surviving Corporation. 5 The approval of the 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 1 _ ECA, respectively, and any written notice required by either the DLLCA or the TBCA or the constituent documents of either of the Merging 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 TBCA, 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, on December 31, 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. SEJ SERVICE LLC By: Is/ Kazuo Otsuka Kazuo Otsuka President. and Board of Managers SEJ FINANCE LLC By: /s/ Shiro Ozeki Shim Ozeld. President and Board of Managers 7 -ELEVEN, INC. By: /s/ Joseph M. DePinto Joseph M. DePinto President and CEO EXI3IBIZ' C Certificate of Merger Corporations Section P.O.Box 13697 Austin, Texas 78711-3697 Office of the Secretary of State CERTIFICATE OF MERGER Roger Williams Secretary of State The undersigned, as Secretary of State of Texas, hereby certifies that the attached articles of merger of. IYG HOLbING COMPANY Foreign Business Corporation Delaware, USA [Entity not of Record, Filing Number Not Available] Into 7 -ELEVEN, TNC. Domestic Business Corporation • [Filing Number: 17909000] have been filed in this. 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.us/ 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) FXLEf In the Office of the Secretary of State of Texas NOV0 9 2005 Corporations Section 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 - to - ,e are as follows: Parent/Subsidiar-y Type of Entity State of Organization Parent Corporation Delaware Subsidiary Corporation Texas Name of Entity IYG Holding Company 7 -Eleven, Inc. 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 Shares Owned by Parent 104,914,928 Number of Outstanding Shares Class 115,891,066 Common Stock, par 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 the merger 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 Time. NYuCCS07/135198.r0 IN WITNESS WHBREOE, the uthcitipacl has duly extasted tows Arnold& of Mer as of toi; 94' day of Noyrmd r, 2005. TYG HOLDING COMPANY (aDalewantotpar lon) By; Nemo; Nobutske 3zto Title; yteepmaltattact D4octor EXHIBIT RESOLUTIONS OF THE BOARD OF DIRECTORS OF IYGHOLDING COMPANY RESOLVED, that PIG 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 17dCA, RESOLVED, that, at the Effective Time, IYGH will be merged with and into the Company, the separate existence of IYOH will cease, and the Company will be the surviving (the "Surviving Corporation") and the Surviving Corporation, without further action, corporation will possess all the rights, privileges, powers and franchises, public and private, of both the Company and LYON and will be subject to all the debts, liabilities, obligations, restrictions, disabilities and duties of both the Company and LYON; 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 PYGH which is issued and outstanding immediately prior to the Effective Time will be converted into 1,142,33137 shares of common stock; par value $0,0001 per share, of the Surviving Corporation; RESOLVED, that, at the Effective Time, each share of common stock, par value $0,0001 per share, of the Company ("Common Stock") issued and outstanding immediately prior to the Effective Time (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 Seven -Eleven 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 onthe part of the holder thereof, into the right to receive, without interest, 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 Stack Certificate or (ii) payment from the Surviving Corporation of the "fair value" of such shares of Common Stock as determined under Article 5,12 of the 1 _ BCA, subject to the conditions set forth therein; RESOLVED, that, at the Effective Time, each share of Common Stock held by the Company as a treasury share or held by IYGH 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 purchase 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 (i) 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 Stock Incentive 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 for 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 withholding requirements; RESOLVED, that, if, after the Effective Time, a shareholder who complies with all of the provisions of the TBCA concerning the right of a holder of Common Stock to 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 1ECA, 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, 7 -Eleven Organization Chart SEVEN & I HOLDINGS CO., LTD. A Japanese Public Company 100% Stock wnership 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 AMENDED AND RESTATED ARS ICLES OF' INCORPORATION OF 7 -ELEVEN, INC. ARTICLE ONE 7 -Eleven, Inc., a Texas corporation (the "Corporation"), pursuant to the provisions. of Article 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 Second Restated Articles of Incorporation of the Corporation and all amendments thereto that are in effect to date (collectively, the "Second Restated Articles of Incorporation'), as further amended by these Amended and Restated Articles of Incorporation as hereinafter set forth, and .contain no other change in any provisions thereof. ' ARTICLE TWO . These Amended and Restated Articles of Incorporation amend and restate the Second Restated Articles of Incorporation. 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 of the Second -Restated Articles of Incorporation, and revise,. add to or delete Articles Three though Fifteen of the Second Restated Articles of Incorporation; The full text of each provision revised or added 'by the Amendm ants is as set forth in Article V hereof, ARTICLE THREE The Amendments have b een effected in conformity with the provisions of the TB CA, and these Amended and Restated Articles of Incorporation and the Amendments effected thereby were duty adopted by the shareholders of the Corporation on -November 9, 2005. ARTICLE 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 Incorporation 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 b een . 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 subsequently 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: Ny.DOC501/742756.6 AMENDED AND RESTATED ARTICLES OF INCORPORATION OF 7 --ELEVEN, INC. ARTICLE ONE The name of the Corporationis 7 -Eleven, Inc. ARTICLE TWO The period of duration of this Corporatidn shall be perpetual. ARTICLE THREE The purpose for which the Corporation is organized is the transaction of any or all lawful business for -which corporations may be incorporated under the Texas Business Corporation Act(TBCA1.. • ARTICLE FOUR The total number of shares of capital stock that the Corporation shall have authority to issue is one billion five million (1,005,000,000) shares, consisting of five million (5,000,000) shares of preferred stock, par value $.01 per share, and one billion (1,000,000,000) shares of common stock, par value 5.0001 per share. The preferred stock may be divided into and issued by the Corporation front tune to time in one or more series as may be fixed and determined by the board of directors of the Corporation. The relative rights and preferences of the preferred stock of each series will be 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 directors 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 common 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. pr[DOCS02(742356.6 2 ARTICLE ?IVE The street address of the Corporation's registered office is 701 Brazos Street, Suite 1050, Austin, Texas 78701, and the name of its registered agent at this address is Corporation Service Company d/bia CSC— Lawyers Incorporating Service Company, . ARTICLE SIX No shareholder of the Corporation, by reason of such person_ holding shares of any class, shall have any 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 not the issuance of.any such shares, or such notes, debentures, bonds or other securities, would adversely affect the dividends or voting rights of such shareholder, and the board of directors may authorize the issuance of shares of any class of stock o£ the corporation, or any notes; debentures, bonds or other securities convertible into or carrying rights, options or warrants to subscribe for or acquire shares of any class of stock, without 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 having 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 . directors and who shall hold office until their respective successors shall be elected and "qualified are:' HYDDC507h42356.6 3 Name ToshiThmi SuzuId Massaki Kamata Nobutake Sato Address Seven -Eleven Japan Co., Ltd. 8-S Nibancho, Cbiyoda-ku Tokyo 102-8455, Japan Seven -Eleven Japan Co., Ltd. 8-8 Nibancho, Chiyoda-lcu Tokyo 102-8455, Japan. Seven -Eleven Japan Co., Ltd. 8-8 Nibancho, Chiyoda-ku Tokyo 102-8455;Japan (b) The number of directors of the Corporation shall be fixed by, or in the manner provided in, the bylaws. ARTICLE EIGHT No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for an act or omission in the director's capacity as a director, . except to the extent otherwise expresslyprovided 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 TB CA (or such comparable statutory provision governing indemnification 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 hither elimination or Imitation 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 VIII 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, repeal 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 TBCA to be taken at any annual or special meeting of shareholders, or any action which maybe taken at any annual ITIDOCS02/742356.6 4 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, shallhe signed -by the holder 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 onthe action were present and voted'. NY000SO2/74z3s6,6. • 5 IN WITNESS WHEREOF, the undersigned has executed these Amended and . Restated Articles of Incorporation this 9th day of November, 2005, By: Nave: an k` Smith, Sr/; Title: E ecutive Vice P esident, General Counsel and Secretary • �) are PAGE 1 The first State I, 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 "S ELT SERVICE LLC", FILED IN THIS OFFICE ON THE SEVENTH DAY OF NOVEMBER, A. D. 2005, AT 11:13 O'CLOCK A.M. 4055425 8100 Harriet Smith Windsor, Secretary of -State AUTHENTICATION: 4278911 O5O9O6467 DATE: 11-07-05 CERTIFICATE OFFORMATION OF SEJ SERVICE LLC This Certificate of Formation of SEJ Service LLC (the "LLC"), dated as of November 7, 2005, is being duly executed and filed by Kazuo Otsuka, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seg.). LLC. State of Delaware Secretary of State Division of Corporations D Jive,red 11:24 2M 11/07/200,5 ?SLED IL:13 AM 11/07/2005 SRV 050906467 - 4055425 FILE FIRST. The name of the limited liability company foiled hereby is SRI 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. THIRD. 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 SEJ SERVICE LLC The undersigned member (the "Undersigned Member") hereby foiuis a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et seq. (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 fouiied 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 may be 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 S ervice 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"): 60 shares of common stock of IYG Holding Company, a Delaware corporation ("IYGH"), representing 60% of the issued and outstanding shares of conunon stock of IYGH, 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 entity taxable as a corporation for such purposes as of the date hereof, including, without - limitation, Internal Revenue Service Forin 8832 (or any successor Form), NYDOCS02(741529.G 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 of Managers (the "Managers") shall be one unless otherwise fixed at 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 LLC Kazuo Otsuka to serve until his successor is elected and qualified. A. Manager shall remainin 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 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 actionthat 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 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. 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: NYDOC502/741529.6 (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 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 rightsand 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 raw; (3) consenting to the appointment of a receiver, 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.dping so, recognizes,_acknowledges and agrees that its duties and obligations to the LLC are only as expressly set forth in this Agreement. NYDOCS021741529.6 - 3 11. Indemnification by the Company. (a) The LLC shall indemnify, defend and hold harmless any Member, Manager, officer or other person (and any 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 inthe 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 asa 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 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 a plea 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 reasonably 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, (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 indemnification may be entitled under any agreement, determination of Members or otherwise, (f) 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 NYDOCS02/741529.6 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 such person 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 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 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.Mernber, by all of the Members).. NYDDCS02/741529.6 - 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 GO'IERNANCE 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. NYDOCS021741529,6 6 IN WITNESS WHEREOF, the undersigned has duly oa d this Agreement of Limited Liability Company as of the 7' day of Novemb*, 2005, SEVEN -ELEVEN JAPAN CO„ LTD, By; /v.S%rf'JZ.,- Name: Tashi Title: President and COO SE) Finance LW Agrcemcnt The First State PAGE 1 I, 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 "SEJ FINANCE LEG", FILED IN THIS OFFICE ON THE SEVENTH DAY OF NOVEMBER, A.D. 2005, AT 11:13 O'CLOCK A.M. 4055429 8100 050906463. Harriet SmithWindsor, Secretaryof State AUTHENTICATION: 4279910 DATE: 11-07-05 CERTIFICATE Or'FORMATION OP SE" FINANCE LLC State of t lawate Secretary of Shaba Division of Coaporoflons felivexed 11:24 .ahf 11/07/2005 05 SW050906463 4055428 0554282E This Certificate of Formation of SRI Finance LLC (the "LLC'), dated as of November 7, 2005, is being duly executed and filed by Sfiiro Ozeki, as an authorized person, to forst a limited liability company under the Delaware Limited Liability Company Act (6 Del, C, § 12-101 et Leg). . FIRST. The name of the limited liability company formed hereby is SET Finance LLC, SECOND. The address of the registered office of the LLC in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 4O0, Wilmington, New Castle County, Delaware 19808. THIRD. 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 ofFodnation as of the date first written above. By: is/ Shiro Ozeld Shim Ozeki LIMITED LIABILITY COMPANY AGREEMENT OF SEJ FINANCE LLC The undersigned member (the "Undersigned Member") hereby folios a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et sue, (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 bf the business to be conducted and promoted by the LLC is, engaging in any dawful act or activity for which limited liability companies may be 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 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 IYGH. 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 entity taxable -as a corporation for such purposes as Of the date hereof; including, w hiollt limitation, Internal Revenue Service Faro. 8832 (or any successor Faith), NYDOCS021741575.6 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 of Managers (the "Managers") shall be one unless otherwise fixed at a different number by an amendment hereto or a resolution signed by the Undersigned Member, The Undersigned Member hereby, electsas the initial Manager of the LLC Shiro Ozeki 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 or procedures consistent with the terms of this Agreement, Arty 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 Certificate 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, 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: Shiro Ozeki, President. The powers and duties of each officer shall be as follows; NYDDC5021741535.6 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 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 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, or otherwise) in connection with any of the following matters without the written consent of the Undersi gned 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 a receiver, 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 forth in this Agreement, NYDOC502/741535,6 3 I I . Indemnification 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 toany 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 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 a plea 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 reasonably 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 acivil or criminal action, suit of 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, (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 indemnification may be entitled under any agreement, determination of Members or otherwise, (f) Any indemnification hereunder shall be satisfied only nut of the assets of the LLC (including insurance and any agreements pursuant to which the LLC and indemnified NYDOC5021741535.6 4 persons are entitled to indemnification), and the Membets 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 such person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the teuus 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 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 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 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 o'r 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 pernritted 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, NYDOC502/741535.6 6 IN WITNESS WHEREOF, the undersigned has duly executed tins Agreement of Limited Liability Company as ofthc day of November, 2005, SEVEN -ELEVEN JAPAN CO., LTD. By, 242 ro. Name: Toshiro ague Title: President and COO SW 3 niu LLC AgRwmcnt SECRETARY OF STATE CERTIFICATE OF A v fNDMENT OF 7 -ELEVEN, INC. k ILE+ NO: 179090-00 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 27, 2000 May 1, 2000 12.01 A.M. S Elton Bonner Secretary of State ARTICI,ES O ,ilrstlinfNT TO TEt SECOND itESTATED ARTIC7,FS 01 INCORPORATION 7-ELVEN, TVC. K i ,F FILED in the Office. of. the teary of date of Tgxas OF APR z 7 2000 CAipOnailorn SQL}ion Pursuant to the provisions of the Texas Business Corporation Act, 7 -Eleven, inc., a corporation organized wider the laws of the State of Texas, hereby amends its Second Restated Articic4 of incorporation (the "Articles of incorporation") and for that purpose, submits the following statement: ARTICLE 0 The name of the corporation is 7 -Eleven, Inc, ARC'ICTY TWO Article Four (b) of the Articles of Incorporation is hereby deleted in its entirety and replaced with a new paragraph (b), as follows: " ARTICLE FOUR (b) Upon the filing of these Articles of Amendment to. the Articles of incorporation with the Texas Secretary of State, each share of the Corporation's common stock, par value 50.0001 per share (the "Old Common Stock"), issued and outstanding immediately prior to the filing hereof shall, without any action on the pa t of the holder thereof, be converted and reclassified into, and immediately represent one. -fifth of a validly issued, fully paid and non_ assessable share of Common Stock. No hold,:- will beentitled to receive a fractional share of Common Stook and any fraction of a share of Common Stock that would otherwise be due a holder as a result of the preceding ser.tence shall automatically be eliminated and, in lieu thereof, the holder thereof shall be entitled to receive a cash adjustment in respect of such fraction of a share inan amount based upon a value of the Common Stock equal to tho. 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 amendment. Eabh.eertifcafe which theretofore represented shares of Old Common Stock shall thereafter represent that number of shares of Common Stock determined in the previous sentences; p ovided, however, that each person holding of record a stock certificate or certificates whic t represented a share of Old Common Stock shall receive, upon surrender of such certificateor certificates, a new certificate or certificates evidencing and representing the numbr.r of shares of Common Stock to which such person is entitled," ARTICT E TTIREE The amendment to the Ankles of Incorporation was adopted by a vote of the shareholders of the corporation on April 26, 2000. ARTICLE FOtjg The uutnber of shares of the corporation outstanding and errtided to vote on this amer\dmont was 410,112,37Sshares. The designa-den and number of shares of each class or series entitled to vote thereon as a class or series were as follows: class or Series Number of Shares Outstanding and Entitled to Vote Norte ARTICLE FIVE The number of shares voted for such amendment was 340,331,661 and the number of shares voted against such amendment was 0,343,355. The number of shares of each class or series entitled to vote as a class or series voted for oragainst such amendment as follows: Class or Series Number of Shares Voted for Against None ARTICI,F 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 effective 12:01 a,m., central daylight time, May 1, 2000) By: Name a S3851 7-EIAVEiT, TNi1C. Tara_ P. ` TOTaL , �3 MHY-11:1-17'J'J LI LUNY 214 754 0921 P.02/06 Please include a typed self-addressed erwetope MUST BE TYPED RUNG FEE: $25.00 MUST SUBMIT TWO COPIES Mall to; Secretary of State 0,orpsAatiorissedlon 15 6p Broadway, Suite 200 Denver, CO 80202 (303) 894-2251 Fax 003)894-224a 7(10610 G\ For office tier, only 19991075686 ' Cx'T'� 40.00 SECRETARY OF STATE 012 APPUCATION FOR AMENDED AUTHORITY Pursuant to the provisions of the Colorado Business CorporationAct, the undersigned corporation hereby applies for an Amended Authority and states: FIRST: The name of the corporation is: ma SOUTHLAND CORPORATION SECOND: If the corporate name was not available, the assumed name of the corporation is: THIRD: X (Check if Applicable) The corporate name of the corporation has become available in Colorado and the corporation desires to 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 No Change The corporation has changed its name to 1-EL£vrN. INC. The name w hich 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 application 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 statement(s) made above.. (COL. - 1417 - 11/9/95) MAY -18-1999 1530 THE SOUTHLAND CORPORATION Signature Carol S. Hilburn Title Assistant Secretary Name of Corporation 214 754 0921 Revised 7/95 90% P.02 MOT -TO -1599 1620 CT CORP C19 (O9 enu The "tate of C�exas5 SECRETARY OF STATE IT IS TIFREBY CERTIFIED that VET INC. File No. 17909O-00 filed articles of incorporation on NOVEMBER 21, 1961 under its original name of 9 HE SOUTHLAND CORPORATION OE 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 15, 1963 FILE DATE: APRIL 29, 1999 EFbhCTTVE DATE: APRIL 30, 1999 IT IS FURTHER CERTIFIED that the corporation is currently in existence under the last name shown above. MAY -19-1999 15' 30 IN TESTIMONY WHEREOF, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in the City of Austin, on April 30, 2999. 214 '754 0921 Elton Earner Secretary of State 991 P.03 ta I of &xaz SECRETARY OF STATE CERTIFICATE OF AMENDMENT OF 7 -ELEVEN, INC. FORMERLY LY THE 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 Romer Secretary of State c•ti i -)H uJc1 AKIICLES OF AMENDMENT TO THE SECOND RESTATED ARTICLES OF INCORPORATION OF THE SOUTHLAND CoRPORATION FILED In the Office of the Secretary of State of ToNas APR 2 9 1999 Corporations Section Pursuant to the provisions of the Texas Business Corporation Act, THE SOUTHLAND CORPORATION, a corporation organized under the laws of the State of Texas, hereby amends ib Second Restated Articles of Incorporation (the "Articles 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, as amended, is as follows: "The name of the Corporation is "7 -Eleven, Inc." ARTICLE THREE The amendment to the Articles of Incorporation_ was adopted by a vote of the shareholders of the orporatlon on April 28, 1999. ARTICLE POUR The number of shares of the corporation outstanding at the time of such adoption was 09,961,233; and the number of shares entitled to vote thereon was. 409,941,168. The designation and number of shares of each class or series entitled to vote thereon as a doss r series were as follows: Class or se dos None Number of Shares Outstanding and Entitled to Vote ARTICLE FIVE The number of shares voted for such amendment was 349,690,410 and the number of shares oted against such amendment Was 159,879. The number of shares of each daces or or entitled to vote as a class or series voted for gainst such amendment as follows: or Class or Series Number of Shama Voted For Aoainst None ARTICLE SIX The effective date of this amendment shall be April 30, 1999. )ated the 23th. day of ApL11, 1299, (to be effective April 30, 1999) THE, SOUTHLAND COR.POR_ATION By: { _ Nam Trtiet 8{-yan F. mith, Jr, - Senior Vice Pi esident _ SECRETARY OF STATE CERTIFICATE OF RESTATED ARTICLES OF INCORPORATION OF THM SOUTHLAND CORPORATION The undersigned, as Secretary .of State of Texas, hereby certifies that Restated Articles of Incorporation of the above corporation, duly executed pure ant to the provisions of the Texas Business Corporation Act, have been received in 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 by law, hereby issues this certificate of Restated Articles of Incorporation and' attaches hereto a copy of the Restated Articles of Incorporation. Dated _ MARCH 05 ,19 91 . Secretary of State yd Team II/Restated Aitides (prods) Certifiate 0819O pursuant 1. to of Article 4.14 of the Texas. Business Corporation Act (the "Act"), herebyadopts 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. SECOND RESTATED ARTICLES OF INCORPORATION (with amendment) / F./L Seer tit�he Off. �O ne THE SOUTHLAND CORPORATION MAR Oe of p State otTey C°rfrorti°n of s asetroh Corporation (the "Corporation"), 2. Corporation Articles of The Southland the provisions The Restated Articles of Incorporation of the are hereby amended by the Second Restated Incorporation as follows; (a) Current paragraph (a) of Article Four is amended to increase from 300,000,000 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_ pr_ share to $., 0-0-01 car value per share: (b) Current Article Four is amended to delete current paragraph (b) of Article Four in 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, into one share of Common Stock, $,0001 par value per share,. (c) Current Article Four is amended to delete current section (c) of Article Four relating to Junior 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 (e) which'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") .shares..: relating to such (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 wording so as to conform to the provisions of 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. (1) Current Artidle Eight is deleted in its entirety, (j) Current Article Nine is amended to delete the names and addresses of directors currently listed and insert the number; names and - addresses forthe directors of the Corporation 4 elected by the shareholders at the 1991 annual meeting of shareholders of the Corporation held. on February 25, 1991, (k) Current Article Eleven is amended to correct the address of the registered office of the corporation. (1) Current Article Thirteen is deleted in its entirety: (m) Current Article Fourteen is amended to alter the wording 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 Articles of=rlcorpor-ation has been effected in conformity with the provisions of Article 4,148 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 of 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 $2048,08, 5, The Restated Articles of Incorporation of the Corporation and all amendments and supplements thereto are hereby superseded by the following Second Restated Articles of Incorporation which accurately copy the entire text thereof as further amended as above set forth: 6 ARTICLE ONE The name of this Corporation is THE SOUTHLAND 'CORPORATION, ARTICLE TWO .The period of duration of this Corporation shall be perpetual, ARTICLE THREE , The purpose for which the Corporation is organized is to engage. in the transaction of any and all lawful business for which corporations may be incorporated under the Texas Business Corporation'Act (the "Act"). ARTICLE FOUR (a) The aggregate number of shares of Common Stock which this Corporation shall have authority to issue is 1,000,000,000 shares of Common Stock, par value one -hundredth of a cent ($,0001) per share; (b) Each ten (10) shares of previously authorized Common 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 $.0001 per share, of the Corporation (the "New Common Stock"). Upon surrender by a holder of the certificates representing shares of Original Common Stock, the Corporation shall issue to such holder a certificate or certificates representing the number of shares of New Common Stock into which the Original Common Stock represented by the certificate so surrendered shall have been combined as aforesaid. The surrender of certificates representing shares of Original Common Stock shall not be necessary to effect the combination contemplated hereby. The Corporation shall not issue fractional shares of New Common • stock with respect to the foregoing described combination, In lieu thereof, the Corporation shall issue a whole share of New Common Stock for any fractional share to which such holder otherwise would be entitled; (c) The aggregate number of shares of Preferred Stock which this Corporation shall have authority to issue is .five million '(5,000,0.00) shares, par value one cent ($,01) 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. he•stated and 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"). Eaeh,such series of Preferred Stock shall be designated so as to distinguish. the shares thereof from the shares of all other series and classes. The•Beard is hereby expressly authorized, subject to limitations provided by law. and by contractual restrictions binding on the Corporation or its property at the time of the issuance of such Preferred Stock, to establish and designate series the Preferred Stock, to . fix the number of shares constituting each series, to fix. the' designations. and the preferences, limitations, and relative rights, including voting rights, of the shares of each such. series and the variations of the relative rights. and preferences as between series, and to increase and to decrease the number of shares constituting each series, provided that the Board may not decrease the number of shares 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 are payable, the conditions upon such dividends, the relationship and preferences, if any, of such dividends to dividends payable on any other class or series of shares, whether or not such dividends shall be cumulative, partially cumulative, or noncumulative, if such dividends shall 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, cash o_=_ot.her-dividends, or any'combination- thereof, and if such dividends shall include 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 ofa 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 price; 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 provided 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 (c) of Article Four as having the right; voting separately as a class, 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 • ARTICLE EIGHT A special meeting of the shareholders of the Corporation may only be 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 The names'and addresses of the directors of this Corporation now serving and who shall hold off ice until their respective successors shall be elected and qualified and who shall have the authority to direct the affairs of the Corporation are: Name Yoshitami Arai Timothy N. Ashida. ,Jay W. Chai Masatoshi Ito Masaaki Kamata Clark' j. Matthews, II Robert J.--Mrr,,;Ye Address Systems International Ind. Tameike Tokyo Building 1-1-14 Akasaka_ Minato-ku, Tokyo 107 Japan A.K.E. Associates,Inc. P.O. Box 4388 Glendale, CA 91202-4388 C. Itoh & Co. (America) Inc, 335 Madison Avenue New York, NY 10017 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 North Haskell Avenue Dallas, TX 75204-2906 Kroll Associates 900 Third Avenue New York, NY 10-022 11 Kazuo Otsuka Asher 0, Pacholder Walter J. Salmon Nobutake Sato Toshifumi Suzuki Jere W. Thompson .Joe C, Thompson John P.Thompson Ito—Yokado Co., Ltd, 1-4, Shibakoen 4—chome Minato—ku, Tokyo 105 Japan Pacholder Associates, Inc. 'The Spectrum Office Tower 1126 Chester Road, Suite 700 Cincinnati, OH 45256 Harvard University ,Graduate School of Business • Administration Soldiers Field Road Boston, MA 02163 Ito-Yokado Co Ltd. 1-4; Shibakoen 4-chome Minato=-ku, Tokyo 105 • Japan •Ita-Yokado Co., Ltd. 1-4, Shibakoen 4-=chome Minato-ku, Tokyo 105. Japan 100 Crescent Court Suite 1000 Dallas, TX 75201 loo 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 • 'which --it could - not dOrrrnenoe business under the Act. 12 ARTICLE ELEVEN The registered office of this Corporation is 350 North St. Paul, Suite 2900, Dallas, Texas 75201, and the name of its registered agent at such address is CT -Corporation System, ARTICLE TWELVE Th'e Corporation shall indemnify any person who (i) is or was a director or officer of this Corporation or (ii) while -a director or officer of. this Corporation is or. was 'serving at the request of the. Corporation as a director, officer, partner, venturer•, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan, or other enterprise, to the fullest extent that a corporation may or is required to grant, indemnification to a director under the Act. The Corporation. may indemnify any person to such further extent as permitted 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 law, no director of this Corporation shall be liable to this Corporation or its shareholders for monetary damages for an act or omission in such director's capacity as a director of this Corporation; provided, however, that this Article Thirteen does not eliminate or limit the liability of a director of this Corporation to the extent the director is found liable for: 1, a breach of such director's duty of loyalty to this Corporation or its shareholders; 2, an act or omission not in good faith that constitutes a breach of duty of the director to this Corporation or an act or omission that involves intentional misconduct or a knowing violation of the law; 3. a transaction from which such director ..received- a_ ,n benefit,. whether 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. The foregoing provisions of this Article Thirteen shall not eliminate or limit the liability of a director for any act or omission occurring prior to August 31, 1987. Any repeal or amendment of this Article by the shareholders of this. Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of -a -director of this Corporation existing at the time of such repeal or amendment, In addition to the circumstances in which a director of this Corporation is not personally liable as set forth in the foregoing provisions of this Article 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 the holders of any specified. fraction which is in excess of one—half or any specified percentage which is in excess of fifty percent of the outstanding shares (or of any class or series thereof) of the Corporation shall, notwithstanding any l'aw, be deemed effectively and properly authorized or approved if authorized or approved by the vote of the holders of more than fifty 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 the Act or any other applicable law to vote thereon separately as a 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 provisions of this Article Fourteen shall be applicable to any required shareholder authorization or approval of: (a) any amendment to these Second Restated Articles of Incorporation; (b) any plan of merger, consolidation, or reorganization involving the Corporation; (c) any sale, lease, exchange, or other disposition of all, or substantially all, the property and assets of the Corporation;. and (d) any voluntary dissolution 14 of the Corporation, Except as otherwise provided in this Article Fourteen or as otherwise. required by the. Act or other applicable law, the vote of the holders of a majority of the Corporation's shares entitled to vote at any meeting of shareholders at which a quorum is present shall be the act of such meeting. Nothing contained in this Article. Fourteen is intended to require shareholder authorization or approval of any action of the Corporation whatsoever unless such approval is specifically required by the other provisions of these Second Restated Articles of Incorporation, the Bylaws of the 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 the Bylaws of the Corporation to be taken, at any annual pr special'meeting of the 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 holder 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 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 CORPORATI W, Thompson ident tc,rid' r;1 Fist 31IntO '1 ``YIM1F9111k a4 TE:M, ENT`•;- as,tenants.by the entireties JT T(iN — as'joint tenants with right cvstna;an �` cusr. MINOR of survivorship and not as under Uniform Gifts to Minors ' tenants in common Act__`______ Additional abhrevlalidns may also be need lhbuph not In the above list. 7 -ELEVEN,• 'he; • . . No hard of any slac&'o(IM1a colporalian sha116e entiita,aey mooro(IigM; Ie suhceribt for drpurchese'an d 1'a sto nk, u Mal the Cnrporelha To culherize d la lane- The Corporelm n ls•a f righted la (save shares oblwo e ropeese ilea by Rik certlflcalT it Common Sletk- The deslonaliona aces Gammon block asack'nd ;tannins each, The o Stock Illeiaee aletf A Rikki of map Emlton, nnitikdad and Ihe , Viete Knee¢ Ilnhalte aalahlnele:IPA rights Mtool da _ e o so loll in oiAaA ofthe Seceehryof$late -ol T6n,. endyin:end be lurnisLr of Atieewit 8h oothe., riaedslh-tk of husio us or reolsleaed onlce, •_ bed to any 9. nee of shares; if any, toPle'a of which VS on Tile In the I bhalehold Bt without tlhrge uppn Ylriaen recast to the Corporalioa al lie principal mace o atrIlin full hhCcordinlg lb apblibable lawshorreguIaIIoose_inscrlphen.on the IaFP of lhlx eer{ilicafe, shall he.conslrUEd'as ihpughlhey:war0 wrPoen M `— as tenants in com non ' UNIVGIF7 TEN CC •:MIN AGT- • tor tfaiue received, 1 Plas:t a iamb Nodal Seburdy or otter idanl@ing nanhar of eastgnee STATE hereby sell, assignand transfer unto PLEASE PflIrtTOa TYPEWRITE NAMEAND ADDRESS or assioqE of the capital' stock. represented by the within Cefificate, and doShres hereby it avucabty constitute:and appoint Attorney • o transfer• •tile said stock on the books of the within -named Corpitrotibn with full -Omar of substitution in the premises.• Dated, • NOTICE, The signaturelo this assigmliehtmust correspond with the name as written upon The face of the certlnc8le, in every particular, without alteration or enlargement, or any change whatever. SIGNATURE GUARANTEED: Rafaela Martinez From: Sent: To: Subject: Janet Lundquist Monday, February 23, 2015 11:21 AM Rafaela Martinez RE: Liquor License - Carpco, LLC dba 7-11 This is an existing site. Public Works does not have any comments at this time. Janet Lundquist Traffic Engineer Weld County Public Works Dept. P.O. Box 758, Greeley, CO 80632 Tele-970.356.4000 ext 3726 Fax- 970.304.6497 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: Rafaela Martinez Sent: Monday, February 23, 2015 9:30 AM To: Dan Joseph; Bethany Pascoe; Frank Piacentino; Lisa Carpenter; Janet Lundquist; Roy Rudisill; Bob Choate Subject: Liquor License - Carpco, LLC dba 7-11 In accordance with the procedure for Liquor Licenses, please review all records on the following document for any associated reports/incidents during the last year and return your report to the Weld County Clerk to the Board's Office within two weeks. Your report will be used by the Board of County Commissioners in considering Approval and renewal of the Applicant's Liquor License. PLEASE RESPOND NO LATER THAN: March 9, 2014 Applicant: Carpco, LLC and 7-11, Inc dba 7-11 Store 39510A File Location: LC0052 Thank you, R.rfizela .4. Martinez Deputy Clerk to the Board 1150 O Street/P.O. Box 758/Greeley, CO 80632 tel.• (970) 336-7215 X5226 1 MEMORANDUM To: Rafaela Martinez, Deputy Clerk to the Board February 27, 2015 From: Bethany Pascoe, Zoning Compliance Officer, Dept. of Planning Services Subject: LC0052 Review of the following new liquor license application by the Department of Planning Services shows the following: Applicant: CarPco LLC & 7 -Eleven Inc dba 7 -Eleven Store #39510 3914 CO HWY 119 Longmont, CO 80504 Zone District: C-3 (Z-106) Legal Description: Mailing Address: 7 -Eleven Licensing PO Box 219088 Dallas, TX 75221 Part of the NE4 of Section 10, Township 2 North, Range 68 North of the 6th PM, Weld County, Colorado This use is permitted through Site Plan Review (SPR-76) permit. Upon review of my records, no violations are occurring on the property at this time. SERVICE, TEAMWORK, INTEGRITY, QUALITY Memorandum TO: Rafaela Martinez FROM: Dan Joseph SUBJECT: Liquor license inquiry DATE: March 4, 2015 CC: Cindy Salazar; Debra Adamson In response to your request, Environmental Health Services has reviewed the Retail Food Service Establishment file for 7 -Eleven #39510A located at 3914 Highway 119, in Longmont, Colorado. At this time, there are no problems or concerns regarding this establishment. Should you have any questions regarding this matter, please contact me via e-mail at djoseph(ifico.weld.co.us or by phone at 970-304-6415 extension 2206. Thank you. Dan Joseph Environmental Specialist III To: Weld County Board of Commissioners From: Deputy Lisa Carpenter Date: February 28, 2015 RE: Carpco LLC & 7 -Eleven, Inc., dba 7 -Eleven Store 39510A Dear Commissioners, 1 have researched and found several reported calls for service at the Carpco LLC & 7 - Eleven, Inc., dba 7 -Eleven Store 39510A, located at 3914 Hwy 119, Longmont, CO 80504, for the Calendar year of 2014 to present day. The reported calls for service are four traffic collisions, 2 unwanted parties, 13 Alarms and an assault of an employee. I find no grounds for disapproval for the renewal of the liquor license. Respectfully Submitted, Deputy Lis' Carpenter Community Resource Officer Weld County Sheriff's Office 1950 "O" Street Greeley, CO 80631 c. WELD COUNTY S•[-UERIFF'S CUF-F10E Communtt)rResource Office LIQUOR ENrbred MENT WORKSHEET 1960 o'streat Greeley, Cole ado 80631 Voice (970) 356-4015 • Fax (970) 304-6467 Inspection Report 0 Incident Report CR#: tic.m.11' tam ( c. ; pc,, t t.c. 1 7 - 117 �,(! .' Licenses blame:( e r r' �i1 i c� / ( fit' l', it � C': ' � !. Liicense e T t' 1.. �' �.,� j� irr� r- t.tt t�.If1J.�r•5. t.�('rrjc to of Report! Incident. ) >I <- }D° _� 1 I ., Address: ?>`j I q yl'� f' 11 1 Person Ceni I :. l C.,( rC, I I L( i!: ; City,stete,Zix 1 oese„ t_Ait ('4 .:.:,V'•ci" i teIaph. et: jO-s - 3(l- .:/(,(f Yes Ho N!A es NO Slate Uquorlicense Posted'Manager Registered State Sales Tax License Posted .% License in Control of Premises County Uquor License Posted -- Trade Name ProperlyRegistered Federal Form 11 • Call (800) 398-2822 — Premises Physical Control Ad giate Food Service License Posted i— Acceptable Dispensing System Minor Warning Sign Posted Off Premise Storage Licensed r-- Moats and Snacks Available ' _ . — Only Permitted Items Sold .-- Cleanliness Adequate Y Alcohol From Permitted Source Books & Invoices Available '-' Discuss Sales of Liquor to Minors Alcohol Beverage Stock A cceptabie ,„- Discuss Sales to Intoxicated Persons v DVJaming OFollow-Up Inspection 12 -A -./"/— Dale vatalion: Dare: Time: Subject 10e I -Is t Wet 1 Eyes: Flair. Clothing: DL /IOC : Stale: Address: CAy State: Zp: Evidence: Yes NO l- W/Phonet. Summer*#: Cowl Date: ice' Yes NO Narrative: Deputy: f 4 #:!S, Date; J.):4' applAwtt ci;d (W-vL J: oL94 t -b +he cSit..t 4/23 LLt A 06 )1 LLiat . -R.atP 8715 2810 6767 N ULL AND RETAIN THIS COPY BEFORE AFFIXING TO THE PACKAGE. NO POUCH NEEDED. A I U S o,$ LL °> M ip 7.2 II ZIP 60631-1117 Q U A GREELEY j FedEx Box 0 FedExTube E Other rts z - o 0 I U g ❑ O0 Do D 0 Q 9.1 Ospo m 041 5722399 Total Declared Valuer m U) T (13 G' E O 0 N V Xa as w— 0 WO CV gu d a co 2 L 2 C C'E- s- 0 • t ,,a o= •- - S E C/) h O `o _ o m U 0 c0 O O co Tm o L LI) � n U o aT) D Y 0] U) N N o E RECEIPT DATE 18, a015- NO. f,,C,; RECEIVED FROM OW* Stpbh4to±, it -1113 q ADDRESS Eicthw dM4 and ty two and 100 — $ 829. 50 FOR -7-Ets. vn S& 395oA Ii s Litanaa_ 3.ac/o 0i"ishutudon HOW PAID CASH CHECK o 8 1L 50 MONEY ORDER B*016--) Rafaela Martinez From: Frank Stofflet [frank@jdcc.comj Sent: Tuesday, March 17, 2015 7:43 AM To: Rafaela Martinez Subject: Liquor Postings Attachments: FullSizeRender.jpg; FullSizeRender.jpg Posted 03/16/2015 13:50 Frank Stofflet Chief Operating Officer JD Carpenter Companies frank'a;jdcc.com Cell: 303-328-1507 'iCarpentr 1 Prea s ►a {T THE L o lA�t - A%1 „r I)S wpm." ntifi Mt - � �� li C t� Pa II? ! ASP U o GrtIUTALS 'IF ID euumi b:aR-�a'b8 Tr� 3..� eeR LttEN. i AT: 51155rtit MAN in IS)W4ati CO 809N it se itAb oti3I TIME AND noM;,, t �F � rte" DATE R pF.rl BY 0 ;�06E� -rovit i NOTICE PUSSUAIIi 7A� Z�kage° --w PPED KING a I i u r% AV et *ass I `blSU- wt. inviv :, °agate "r" ca l''�� , ! a. �..*sr Ms .N$E AT:.511514:47 .~'r i i g01% le'r v `�iii $1 I T. LotkcAppir 1� 1 t 7104 VA.1 1; 40031 -- IE AU. Oa : :l , aO« (E OF APPUCA U. 3 , • NI5" Lt BOER OF:gabifin CAW41149Its ., 10ERS: ,Eni ,I" "ia-N, INc F -r • C. SIlion b4 .- ESQUIRE PETITIONING SERVICES, L.L.C. Liquor Licensing Specialists 2792 South Race Sheet Denver, Colorado 80210 Telephone: (303)331-8600 Facsimile: (303)331-9048 kpietrs@comcast.net March 25, 2015 To: Weld County Liquor Licensing Authority Re: Summary Report of the petition circulation methods and results in the application for a 3.2% Beer Off Premises Liquor License Applicant: Trade Name: Proposed Location: Methods: Carpco, LLC. & 7 -Eleven, Inc. 7 -Eleven Store 39510B 3914 CO HWY. 119 Longmont, Colorado Weld County 1. The petition circulation was conducted under the control of Esquire Petitioning Services, L.L.C. ("Esquire"). 2. Circulators were driven to the proposed site and became familiar with the Applicant's proposed location. 3. The petitions and the circulators' Affidavits were pre -filed according to the requirements of the Licensing Authority. 4. Esquire prepared the petition circulation materials. Each circulator carried a clipboard and petition packet consisting of the following: a. the map prepared by the Licensing Authority, outlining the designated neighborhood and showing the proposed by an "X"; b. a petition cover sheet stating the Applicant's name, trade name, proposed location, type of license application, qualifications for signing the petition; and the time, date, and location of the public hearing; c. signature sheets that provided eligible persons the opportunity to sign the petition in support of, or in opposition to, the application; and d. data sheets on which to record all responses by address. 5. The circulators were instructed as follows: a. to state the petition being circulated concerned the application of a 3.2%Beer Off Premises Liquor License for Carpco, LLC. & 7 -Eleven, Inc.dba 7 -Eleven Sore 39510B; b. to present the map of the designated neighborhood and to describe the Applicants location c. to review the qualifications for signing the petition and the petition issue; d. to provided eligible persons the opportunity to sign the petition in support of, or in opposition to the Application e. to witness all signatures; and f. to record, by address, all responses on the data sheet. RESULTS: 1. Overview of Petition Results: - -Total door knocks* --Persons who signed the petitions: - -Persons who declined to sign the petition: - -Ineligible contacts: (Younger than 21; non- resident; non-English speaking, not the owner or manager of the business, etc.) - -No answer to the door knock: 97 42 4 9 45 * The total number of door knocks may not be equal to the sum of the eligible contacts, the ineligible contacts and the no answers due to signatures by more than one person at a residence or business. 2. Response of Eligible Contacts: a. Signatures supporting issuance: Residents: Business Owners/ Managers: TOTAL: b. Signatures opposing issuance: Residents: Business Owners/Managers: TOTAL: TOTAL SIGNATURES: Totals: Percentage of persons who signed: 30 71.4 12 28.6 % 42 100 % 0 0.0 % 0 0.0 % 0 0.0 42 100 "/° c. Reasons stated for opposing the issuance of the license: Sufficient number of outlets: Abhorrence to alcohol: May adversely affect traffic Other/No reason stated: TOTAL d. Results analyzed on a needs and desires basis: 0 0.0% 0 0.0 % 0 0.0 % 0 0.0 % 0 0.0 Eligible contacts who signed in support of the license because they desired the license to issue because the existing licensed outlets are not sufficient to meet the needs of the neighborhood: Eligible contacts who signed in opposition to the license because they did not desire the license to issue because the existing licensed outlets are sufficient to meet the needs of the neighborhood: 42 100% 0 0.0% TOTAL: 42 100 e. Reasons stated for not signing petition: Preferred to remain neutral: 0 No interest in application: 1 Would not sign any petitions 0 Does not drink alcohol 1 Too busy: 2 Against company policy: 0 Other/No reason stated: 0 TOTAL: 4 Prepared by Kelly B. Pietrs Esquire Petitioning Services, LLC Fallen k 80516 i Foster Resen oir MAP OF THE DESIGNATED NEIGHBORHOOD CONCERNING THE APPLICATION FOR A 3.2% BEER OFF PREMISES LIQUOR LICENSE Applicant: CARPCO. LLC. & 7 -ELEVEN, INC. Trade Name: 7 -ELEVEN STORE 39510B Location: 3915 CO HWY. 119 LONGMONT, COLORADO - WELD COUNTY PETITION CONCERNING A 3.2% BEER OFF PREMISES LIOUOR LICENSE Applicant: CARPCO, LLC. & 7 -ELEVEN, INC. Trade Name: 7 -ELEVEN STORE 39510B Proposed Location 3914 CO HWY. 119 LONGMONT, COLORADO — WELD COUNTY Application For: A 3.2 % Beer Off Premises Liquor License to sell 3.2% Beer by the Package for consumption OFF the premises ****************************************************************************** Public Hearing before the WELD COUNTY LIQUOR LICENSING AUTHORITY Date: MARCH 30, 2015 Time: 9:00 A.M. Location: Weld County Administration Building 1150 O Street, Greeley, Colorado ****************************************************************************** INSTRUCTIONS AND QUALIFICATIONS FOR SIGNING THIS PETITION: DO NOT SIGN THIS PETITION UNLESS: 1. You are at least 21 years of age. 2. You RESIDE within the defined neighborhood designated on the attached map. OR 3. If you do not reside within the defined neighborhood, you are the OWNER OR MANAGER of a business within the designated neighborhood. Please see attached map. 4. You sign your name only. Please sign your first name or first initial, middle name or middle initial (if appropriate) and last name in the presence of the petition circulator. No individual may sign for another individual. 5. You have not signed another petition concerning the same application. 6. You have read or had the opportunity to read the petition in its entirety and understand its meaning. ****************************************************************************** PETITION TO THE LOCAL LICENSING AUTHORITY ****************************************************************************** IF YOU SUPPORT THIS APPLICATION FOR A 3.2% BEER OFF PREMISES LIQUOR LICENSE BECAUSE THE PRESENT OUTLETS ARE NOT SUFFICIENT FOR YOUR NEEDS, AND IT IS YOUR DESIRE THIS LICENSE BE ISSUED, PLEASE MARK AN "X" IN THE "SUPPORT" COLUMN. IF YOU OPPOSE THIS APPLICATION FOR A 3.2% BEER OFF PREMISES LIQUOR LICENSE BECAUSE THE PRESENT OUTLETS ARE SUFFICIENT FOR YOUR NEEDS, AND IT IS YOUR DESIRE THIS LICENSE NOT BE ISSUED, PLEASE MARK AN "X" IN THE "OPPOSE" COLUMN. PETITION CONCERNING A 3.2% BEER OFF PREMISES LIQUOR LICENSE APPLICATION APPLICANT : CARPCO, LLC. & 7 -ELEVEN INC. TRADE NAME: 7 -ELEVEN STORE 39510B PROPOSED LOCATION: 3914 CO HWY. 119, LONGMONT, COLORADO, WELD COUNTY The undersigned has read, or has had the opportunity to read, the petition in its entirety and under Signature -on top of line (First and Last Name) Street Address (with suite number) Support Oppose Age Date Signed Printed name -below line (Pleaseuse black ink) 1 eaase .��-ni�f• �t�'c r r/,,,,, { C 7 e( J5)Li-eP lit"- �,/ ;,. j �> ,/`„,",,,` (tP �,Jcu Qin /L L1L,,?Yi- l 2 ,, , /0„,f( -4_/1.,,,4:,,),,,,I. L..__, /C' )6 ti- l%LlitC IDfr-V \/c �/ L) I '/, ti i.if' {fit Yu- 1.- buit nZ✓ 3 /ii ��L.: J j 00 //c21) ��,f/(-`//,, .2 �✓1 L tIEG Y7K AL \ ' - 7('/.113c777? b ?._ V - ') ,/mo t k IRK' . / cY > ('l,' -sac 5 1 1o7of 3Jle Pr I/ / (oo CA rwt'S� O I ' `-7 7 � , G- c %7 1 o(., q L fgu1� �' 8 c_____ car vo A y,(4 / I t` ci Z, - ,i ? j , c -c -r7 ✓.L , Lc. -;,-Z_, , ,,�� ?,', 5 7 F -3()t t-<, I; .. - 1 [Inc -/-7/- ,, 1. l ,"; IL C _u (C)6(1e) C)6 (1e g h- �y / �� 4p) • i ri (7 5S- I I V/ Esquire Petitioning Serrtces, LLC Page . of Circulator's Initia s: <r -I2 PETITION CONCERNING A 3.2% BEER OFF PREMISES LIQUOR LICENSE APPLICATION APPLICANT : CARPCO, LLC. & 7 -ELEVEN INC. TRADE NAME: 7 -ELEVEN STORE 39510B PROPOSED LOCATION: 3914 CO HWY. 119, LONGMONT, COLORADO, WELD COUNTY The undersigned has read, or has had the opportunity to read, the petition in its entiret and understand its meani Signature -on top of line (First and Last Name) Street Address (with suite number) Support Oppose Age Date Signed Printed name -below line (PP/ll�ease use black ink) 1LI(\ A,�� c�II { Vb�`ID� kh fns )�'� t o 3ldyJ /is 21/4 q V G` }--- I e . V `1 �AlPc « co //owr�� J4^_,l-L. V 34 IA - (1( tez, li-tfr--- tjjf I t Di " -b(t Cr7 di / 5 70 147 3. kY A U Li Vjri/Letjd 6 /069cle,3nc-t6�:cgt—R s�s�h �� in s�a�� 7 'r' )PIP (�I,r9Pi&.S%(-t a� {, )" 8 C7)�- loE€,6 .-Iresirr et y zR).727g V i y— lahsti ( 90hCc*7 9 r i 067 .l �-- A— z-- 3 aYrs , I I �N k.oU7ci r c_,.4-eo l ,5L{ 7�c(/ Its e_tec- L(Arse ,oft lie/An/4 / a 6 77 yard--ecP ( i<,p 5'1 /mil .-. c1 Cc�r I (� 7, U 12 1 Esquire Petitioning Services, LLC Page Circulator's lnitia s: O PETITION CONCERNING A 3.2% BEER OFF PREMISES LIQUOR LICENSE APPLICATION APPLICANT : CARPCO, LLC. & 7 -ELEVEN INC. TRADE NAME: 7 -ELEVEN STORE 39510B PROPOSED LOCATION: 3914 CO HWY. 119, LONGMONT, COLORADO, WELD COUNTY The undersigned has read, or has had the opportunity to read the petition in its •entirety and under Signature -on top of line (First and Last Name) Street Address (with suite number) .,.....,...a Support p ........ Oppose ... -. Age Date Signed Printed name -below line (Please us black ink) 1 1, flea lb bS 1 typo e,agf 3I yk A4444 sJ & _Pall— 2 /04-57-U,o yy4/aril/Jr 33 5.--2,/-1 Zti/e A-. s`* la' marin 35 3 aq RAN/ 1(0R.,gtr 251 3/act Cais. 4Li, iwt yr- 44, ). 17 3 3 st'a 066o Ur Fi*r1t- Pt y -3 .5•"-- tt1 A S1C," 7 8 9 10 11 12 Esq Circulator's Initia s: • (S CIRCULATOR AFFIDAVIT I, Ca i U k 4 b 15 Gn , being over the age of twenty-one years and being first duly sworn upon oath, depose and state: I was the circulator of the petition attached hereto and further assert that I personally witnessed the placing of each signature on the attached petition. To the best of my knowledge, each signature is the signature of the person whose name it purports to be and each address given opposite each name is the true address of the person who signed the petition. Additionally, every individual who signed the attached petition represented himself or herself to be over the age of twenty-one (21) and is either a resident or the owner or manager of a business in the neighborhood designated as the immediately affected area. Further, every- signer of the attached petition was given the opportunity to read, or had read to them, the petition in its entirety. Finally, every signer was given the opportunity to sign in support of, or in opposition to, the application and understood the nature of the petition, and thereby freely and voluntarily signed such petition without the employment of any promises, threats, force or inducements. STATE OF CO ORAD COUNTY OF (70)/1Z, CIRCULATOR ) SS. Subscribed and sworn to before me • 6 day of My commission expires: arch , 2015 NOTARY PUBLIC Sanbprn Reseraoir 0516 AR?' { Foster; Reservoir, rth ;vieao MAP OF THE DESIGNATED NEIGHBORHOOD CONCERNING THE APPLICATION FOR A 3.2% BEER OFF PREMISES LIQUOR LICENSE Applicant: CARPCO. LLC. & 7 -ELEVEN, INC. Trade Name: 7 -ELEVEN STORE 39510B Location: 3915 CO HWY. 119 LONGMONT, COLORADO - WELD COUNTY St' PETITION CONCERNING A 3.2% BEER OFF PREMISES LIQUOR LICENSE Applicant: CARPCO, LLC. & 7 -ELEVEN, INC. Trade Name: 7 -ELEVEN STORE 39510B Proposed Location 3914 CO HWY. 119 LONGMONT, COLORADO — WELD COUNTY Application For: A 3.2 % Beer Off Premises Liquor License to sell 3.2% Beer by the Package for consumption OFF the premises ****************************************************************************** Public Hearing before the WELD COUNTY LIQUOR LICENSING AUTHORITY Date: MARCH 30, 2015 Time: 9:00 A.M. Location: Weld County Administration Building 1150 O Street, Greeley, Colorado ****************************************************************************** INSTRUCTIONS AND QUALIFICATIONS FOR SIGNING THIS PETITION: DO NOT SIGN THIS PETITION UNLESS: l . You are at least 21 years of age. 2. You RESIDE within the defined neighborhood designated on the attached map. OR If you do not reside within the defined neighborhood, you are the OWNER OR MANAGER of a business within the designated neighborhood. Please see attached map. You sign your name only. Please sign your first name or first initial, middle name or middle initial (if appropriate) and last name in the presence of the petition circulator. No individual may sign for another individual. You have not signed another petition concerning the same application. You have read or had the opportunity to read the petition in its entirety and understand its meaning. ****************************************************************************** PETITION TO THE LOCAL LICENSING AUTHORITY ****************************************************************************** IF YOU SUPPORT THIS APPLICATION FOR A 3.2% BEER OFF PREMISES LIQUOR LICENSE BECAUSE THE PRESENT OUTLETS ARE NOT SUFFICIENT FOR YOUR NEEDS, AND IT IS YOUR DESIRE THIS LICENSE BE ISSUED, PLEASE MARK AN "X" IN THE "SUPPORT" COLUMN. IF YOU OPPOSE THIS APPLICATION FOR A 3.2% BEER OFF PREMISES LIQUOR LICENSE BECAUSE THE PRESENT OUTLETS ARE SUFFICIENT FOR YOUR NEEDS, AND IT IS YOUR DESIRE THIS LICENSE NOT BE ISSUED, PLEASE MARK AN "X" IN THE "OPPOSE" COLUMN. PETITION CONCERNING A 3.2% BEER OFF PREMISES LIQUOR LICENSE APPLICATION APPLICANT : CARPCO. LLC. & 7 -ELEVEN INC. TRADE NAME: 7 -ELEVEN STORE 39510B PROPOSED LOCATION: 3914 CO HWY. 119, LONGMONT, COLORADO, WELD COUNTY The undersigned has read, or has had the opportunity to read, the petition in its entirety and understand its meanin Signature -on top of line (First and Last Name) Business Name and Street Address (with suite number) Support Oppose Age Date Signed Printed name -below line (Please use black ink) 1 Z if 714 /� 7 NSF iYI i ll anager Owner ) �3 / K% /iii-- V ��I 'Manager Owner _� < 7� ": !J c r ( J UR�,�E� ,GuD �� V �I //03- Manage Owner �� g 21 C'/_ft, lnpvice PkitA }�/ iQ� ,e,v0 / vab J I /[� V 4 ,.- 7-W Mana rer�K Ownc�� T T r 'Lilt �� A,�/J��yz- L�35 fl itlC litr l4\L-� n , i fi;j �� I�� li-:�,ti,ty L�IGf - , , _, �- �� 3 / i2y/ as / J / �,LllGL_ IJ �y'� I anger ncr ✓ /G''J,e)-Al -7---,79- '/� ; Mapager V /il--/> ! j < Z./ 7 lU Gip! i1, ' Scl -hp t "1 ' Manap,cf Owner C. l SJ �� 701 cf Hy; t III �� Co 1� w ..E, �'�t:SG`'1C' /xi,C C-' • ) VL e)iI2I> Mana (U Ownet 9 /i 1 �1� . 11)M\ I�uvi5 7'3IS N4vv Ni 1 CC t 6'�' V ' nlana ,e I Owner _ I.�'� Z '(.. y/4 '?> >�Sict-yrecilea ('cm-si_ c-, t4 pt -ii P7 ----,,-na+,vvcvi c:=)c Manager Oyer I I /i' [� / v -te/l- 2 @s...s r,wa 77 0AJ //66v s iceamat F6 llvr#A Ld M6gti eh 24'sZ * b 14,141--- Jjjc >L /12eel Mana Owner 12 l% 'S ( c/ R,tr� S, S �.a ci s c & e> �jGrc. Shajcmod. Ad u.../ - ft ti3 3ezYpf Manager Owner . titre itioning Services, LLC Page of Circulator's Initia s: LAS f CIRCULATOR AFFIDAVIT h Cl(t c, 0 lvv►a , being over the age of twenty-one years and being first duly sworn upon oath, depose and state: I was the circulator of the petition attached hereto and further assert that I personally witnessed the placing of each signature on the attached petition. To the best of my knowledge, each signature is the signature of the person whose name it purports to be and each address given opposite each name is the true address of the person who signed the petition. Additionally, every individual who signed the attached petition represented himself or herself to be over the age of twenty-one (21) and is either a resident or the owner or manager of a business in the neighborhood designated as the immediately affected area. Further, every signer of the attached petition was given the opportunity to read, or had read to them, the petition in its entirety. Finally, every- signer was given the opportunity to sign in support of, or in opposition to, the application and understood the nature of the petition, and thereby freely and voluntarily signed such petition without the employment of any promises, threats, force or inducements. Oat CIRCULATOR STATE CO RADO COUNTY COUNTY OF ) SS. Subscribed and sworn to before me this Z '= day of My commission expires NOTARY PUBLIC 3 -zit --2,01(0 arch -;ER DO 45 , 2015 Site Plan Review SPR-445 COLORADO Planner: Parcel Numbers Applicant Legal Description. Zoning: Situs: Proposed Use: PL STAFF REPORT RETAINED IN TYLER. REMAINDER RETAFNIED IN PAPER LIQUOR FILE. ORIGINAL CASE FILE MAINTAINED BY PLANNING„ SIFF PLAN REVIEW Athiciptistrative Review Kim Ogle Case Number: Site PLan Review PR -445 1313-1g-1-00-012 and 1313-10-1-00-036 David Carpenter J.D. Carpenter Company 4060 NW Urbandale Drive Urbandale, Iowa 50322 Part NE4 Section 10, T2N„ R68of the 6°" P.M., Weld County, Co C-3 (Business Commercial) 3914 Hwy 119, Longrnont, Colorado 60504 Site Plan Review for stores and shops furnishing services and merchandise at retail to the general public: restaurants, including drive-in restaurants and gasoline service stations, car washes and vehicle service/repair establishments Site Plan Review Standards Comments Meets lime teat of the Weld County Site Plan Certification YES Retention Facilities Department of Pubtic Works referral dated July 7, 2011 ,DES off street Parking47 iapartmeril spaces delineated of Planting Services on plans calculation 21 spaces: YES Loading • Areas YES Muss Department of Public Works referral dated July 7.2011 'ES Setback Requirements 25 Feet YES Kse't R qu'rer�enis 10 Feet YES Lan�ds�capinYES Tra h ollectinr� and ior.a a YES P table Water Left Hand Water District. Tap No. 904041-U5 YES Sewage Dispesal St Vramn Sanitation service is available District, and a tap the applicant has been to acquired provide evidence that NO Environment Standards Department 2011 of Public Health and Environment referral dated July 1. YES Property Maintenance YES Narrative: Site Plan Review No. 76 was previously reviewed and approved by staff in 1986 for Burger King Restaurant. This application is for a convenience store, gas station with pumps and a restaurant including a drive-in restaurant. Galloway and Company, Inc. who represents the JD. Carpenter Company has no affiliation to the previous owners at this location. Given the current owner, and the proposed use as herein defined, to include, stores and shops furnishing services and merchandise at retail to the general public; restaurants, including drive-in restaurants and gasoline service stations, car washes and vehicle service/repair establishments in the 0-3 (Business Commercial) Zone District, Site Plan Review No, 445 will take precedence for all specific site related improvement and activities, thereby making SPR-76 obsolete. The property owner should request to vacate Site Plan Review # 76 in writing. The property is to be redeveloped into a modern convenience store with a quick service restaurant and retail fuel sales component, The existing 3990 square foot single story building will be remodeled into an approximately 2790 square foot convenience store and an approximate 1200 square foot quick service restaurant. The convenience store and retail fuel sales component will operate 24 hours a day and the facility will offer convenience oriented retail merchandise as well as pre-packaged and self service food and beverage items. Public restrooms will be incorporated into this remodel. The property is described as two separate parcels of land adjacent to each other The existing structure currently straddles the property line, and therefore does not meet setbacks. As the building was permitted end constructed to the site, in error, staff is requesting that the property owner, Burger Avenue Investments, Ltd of 215 W, Magnolia Street, Suite 200; Fort Collins, Colorado 80521 consider combing the two properties by Deed This site plan review is approved with the attached conditions: 1, The Site Plan Review Map shall be prepared in accordance with Section 23-2-160.V of the Weld County Code. More than one sheet may be required to adequately address the components associated with this development site. (Department of Planning Services) 2. Prior• to recording the Site Plan Review plat, the applicant shall address the following to the Department of Planning Services' satisfaction: A. The applicant shall address the requirements of the Weld County Building Department, as stated in the referral response dated July 1 2011 including but not limited to any work requiring a Building Ferry it per Section 29-3-10 of the Weld County Coder (Department of Planning Services) B. The applicant shall attempt to address the general requirements from the Town of Firestone as stated in their referral dated June 21, 2011, Written evidence of such to be submitted to the Department of Planning Services, (Town of Firestone) G. The applicant shall attempt to address the requirements of the Mountain View Fire Protection District as stated in their referral dated June 0, 2011. Written evidence of such to be submitted to the Department of Planning Services. (Mountain View Fire Protection D [strict ) D. The applicant shall address the requirements of the Rural DitchCompany, as stated in the referral response dated June 21, 2011 including but riot limited to demonstration that the site grading does not allow for any runoff from this property into the Rural Ditch. The Rural Ditch is an active agricultural ditch and any runoff from this property will have a high potential to be contaminated with residual waste oil and gasoline. We request that the applicant to provide a drainage map that has enough detail to demonstrate that sheet flow from their proposed development will not flow into our ditch. Also we request that the applicant install and maintain at least two monitor wells along their western border with the Rural Ditch, and provide access to the results of this site monitoring. Written evidence of such to be submitted to the Department of Planning Services, (Rural Ditch) The applicant shall submit evidence of an Air Pollution Emission Notice (A.P.E.N,) and Emissions Permit application from the Air Pollution Control Division (APCD), Colorado Department of Health and Environment. Alternately, the applicant can provide evidence from the APCD that they are not subject to these requirements. (Written evidence of such to be submitted to the Department of Planning Services. Weld County Department of Public Health and Environment) The applicant shall comply with Colorado Retail Food Establishment Rules and Regulations governing the regulation of food service establishments. Evidence that the applicant has applied for a Retail Food Establishment License for the on -site commercial kitchen shall be provided to the Weld County Department of Public Health and Environment and to the Weld County Planning Department. Written evidence of such to be submitted to the Department of Planning Services. (Weld County Department of Public Health and Environment) G. The applicant shall submit evidence of an Underground Storage Tank permit from the Colorado Department of Labor and Employment (CDL&E), Oil Inspection Section for any underground storage tanks located on the site. Alternately, the applicant can provide evidence from the (CDL&E), Oil Inspection Section that they are not subject to these requirements. Written evidence of such to be submitted to the Department of Planning Services. (Weld County Department of Public Health and Environment) H The applicant shall submit a waste handling plan, for approval, to the Environmental Health Services Division of the Weld County Department of Public Health & Environment. The plan .shall include at a minimum, the following: 1) A list of wastes which are expected to be generated on site (this should include expected volumes and types of waste generated). 2) A list of the type and volume of chemicals expected to be stored on site. 3) The waste handler and facility where the waste will be disposed (including the facility name, address, and phone number). Written evidence of such to be submitted to the Department of Planning Services. (Weld County Department of Public Health and Environment) A waste handling plan is required and should include clean up and disposal of fuel spills, and disposal of trash and garbage, and grease. The waste handling plan should also include the names and addresses of the waste handlers and disposal sites. Written evidence of such to be submitted to the Department of Planning Services. ((Department of Public Health and Environment) J A Retail Food Establishment License is required. A plan review by Weld County Environmental Health Services wits be required prior to issuance of the food license. Written evidence of such to be submitted to the Department of Planning Services (Department of Public Health and Environment) K. A Preliminary Drainage Report for J.D. Carpenter Company Fueling Facility and Convenience Store, dated May 16, 2011, was submitted. The report was prepared by Galloway & Company Inc. This report is acceptable. Please submit the Final Drainage Report and ensure that it is signed and stamped by a Professional Engineer registered in the State of Colorado. (Department of Public Works) The applicant shall submit an updated letter from the St. Vrain Sanitation District indicating that they have the ability to serve the site. Written evidence of such to be submitted to the Department of Planning Services (Department of Planning Services) M. One month prior to construction activities: 1. A State storr-nwater discharge permit may be required for a development / redevelopment / construction site where a contiguous or non-contiguous land disturbance is greater than or equal to one acre in area, Contact the Water Quality Control Division of the Colorado Department of Public Health and Environment at ww v.cdohe.state.co.usfwa/PermitsUnit for application more information, 2. Submit full size plan drawings to the Mountain View Fire Protection District for review. These plans should show building location and size, curb cut locations and width, width of drives through the site, location of fueling islands, and location of underground tanks. Show on this same plan the location of any fire hydrants. (International Fire Code Section 501.3) (Mountain View Fire Protection District) 3. Submit building construction plans to the Mountain View Fire Protection District for review and approval. Include drawings showing kitchen equipment and location, (International Fire Code Section 501.3) (Mountain View Fire Protection District) 4. Submit shop drawings for the underground tank and associated piping to the dispensing units, as well as, the process to be followed for the installation to the Mountain \liew Fire Protection District for review, (International Fire Code Section 105.4) (Mountain View Fire Protection District) N. The plat shall be amended to delineate the following: 1. All sheets of the plat shall be labeled Site Plan Review SPR-445. (Department of Planning Services) 2 The Site Plan Review Map shall be prepared in accordance with Section 23-2- 160.V of the Weld County Code. (Department of Planning Services) 3 Delineate the three existing accesses to this parcel. One access is located within 100 feet of the intersection. This access shall be restricted to be an entrance only access. The other two accesses shall remain as full movement accesses. All access points shall be clearly labeled on the plat (Department of Public Works) 4 Turner Boulevard is designated on the Weld County Road Classification Plan as a collector road, which requires 80 feet of right-of-way at full build out. There is presently 60 feet of right-of-way. An additional 10 feet shall be delineated on the plat as future Turner Boulevard right-of-way. No structures may be built within the right-of-way or future right-ofµway. All setbacks shall be measured from the edge of future right-of-way. The applicant shall verify the existing right-of-way and the documents creating the right-of-way and this information shall be noted on the plat. If the right-of-way cannot be verified, it shall be dedicated. This road is maintained by Weld County. (Department of Public Works) 6, Delineate all easements of record. (Department of Planning Services) P The following notes shall be placed on the plat: All proposed or existing structures will or do meet the minimum setback and offset requirements for the zone district in which the property is located. Pursuant to the definition of setback in the Weld County Code, the required setback is measured from the future right-of-way line. (Department of Planning Services) 2. In the event that a portion of the building is proposed to be leased or sold to another party in the future, the applicant shall submit a copy of the lease of sales agreement and information regarding the proposed use of the leased portion to the Weld County Building Inspection Department, Mountain View Fire Protection District, Weld County Department of Public Health and Environment, and the Department of Planning Services for review. Based upon the proposed use and/or impacts of the leased portion, the Department of Planning Services may require a new Site Plan Review application. (Department of Planning Services) 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 and Industrial Zone District until a Site Plan Review has been approved by the Department of Planning Services. (Department of Planning Services) 4 Ali liquid and solid wastes (as defined in the Solid Wastes Disposal Sites and Facilities Act, 30-20-100.5, C. R.S,, as amended), shall be stored and removed for final d isposai in a manner that protects against surface and groundwater contamination. (Department of Public Health and Environment) 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 H the Solid Wastes Disposal Sites and Facilities Act, 30-20-100.5,O, R, ., 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 conditions. (Department of Public Health and Environment) 7. The applicant shall operate in accordance with the approved "waste handling plan" at all times. (Department of Public Health and Environment) 8. Adequate drinking, hand washing and toilet facilities shall be provided for employees and patrons of the facility, at all times. (Department of Public Health and Environment) 9, The applicant shall comply with all provisions of the State Underground Storage Tank Regulations. (Department of Public Heatth and Environment) 10. This facility shall adhere to the maximum permissible noise levels allowed in the Commercial Zone as delineated in Section 14-9-30 of the Weld County Code. (Department of Public Health and Environment) 11. Adequate drinking, hand washing and toilet facilities shall be provided for employees and patrons of the facility, at all times. (Department of Public Health and Environment) 12. The facility shall utilize the existing municipal sewage treatment system (St. Vrai€i Sanitation District). (Department of Public Health and Environment) 13. The facility shall utilize the existing public water supply (Left Hand Water District). (Department of Public Health and Environment) 14. All potentially hazardous chemicals must be handled in a safe manner in accordance with product labeling and in a manner that minimizes the release of hazardous air pollutants (HAP's) and volatile organic compounds (VOC's). (Department of Public Health and Environment) 15. If applicable, the applicant shall obtain a stormwater discharge permit from the Colorado Department of Public Health & Environment, Water Quality Control Division. (Department of Public Health and Environment) 16. The applicant shall comply with Colorado Retail Food Establishment Rules and Regulations governing the regulation of food service establishments. (Department of Public Health and Environment) 17. The operation shall comply with all applicable rules and regulations of State and Federal agencies and the Weld County Code. (Department of Public Health and Environment) 18. if applicable, the applicant shall obtain a stormwater discharge permit from the Colorado Department of Public Health & Environment, Water Quality Control Division. (Department of Public Health and Environment) 19. The operation shall comply with all applicable rules and regulations of State and Federal agencies and the Weld County Code. (Department of Public Health and Environment) 20. A building permit will be required for the canopy over the fueling station. (Department of Building Inspection) 21. A Change of Use permit will be required for the interior remodel of the existing building. (Department of Building Inspection) 22. A Demo permit will be required prior to demolition of the interior. (Department of Building Inspection) 23. Accessibility requirements will need to be met for the building according to ANSI Standards, and 2006 IBC. (Department of Building Inspection) 24. Building permits shall be obtained prior to starting construction. A plan review is required for each unit for which a building permit is required, Two complete sets of plans are required when applying for each permit, Include a Code Anatysis Data sheet for the Weld County Building Department with each building permit. Submittal plans shall include a floor plan showing the specific uses for each area of the building. Plans shall bear the wet stamp of a Colorado registered Architect or Engineer. (Department of Building Inspection) 26. Buildings shall conform to the requirements of the various codes adopted at the time of the permit application. Currently the following has been adopted by Weld County: 2006 International Building Code; 2006 International Mechanical Code; 2006 International Plumbing Code; 2006 International Fuel Gas Code: 2006 International Energy Code; 2008 NEC; 2003 International ANSI 117.1 Accessibility Code and Chapter 29 of the Weld County Code (Department of Building Inspection) 27. All building plans shall be submitted to the Mountain View Fire Department for review and approval prior to issue of Building Permits. (Department of Building Inspection) 28. Landscaping materials as indicated in the approved Landscape / Screening Plan shall be maintained at all times. (Department of Planning Services) 29. Lighting shall comply with the requirements and standards for off-street parking spaces per Section 23-4-30,E, Section 23-3-350.K and Section 23-3-360.F of the Weld County Code, (Department of Planning Services) 30. All structures, including signs, on site must obtain the appropriate building permits. (Department of Planning Services) 31. Effective April 25, 2011, Building Permits issued on the proposed lots will be required to adhere to the fee structure of the Weld County Road Impact Program.(Ordinance 2011-2) (Department of Planning Services) 32. Effective April 25, 2011, Building Permits issued on the proposed lots, will be required to adhere to the fee structure of the County Facility Fee and Drainage Impact Fee. (Ordinance 2011-2) (Department of Planning Services) 33. The historical flow patterns and run-off amounts will be maintained on site in such a manner that it will reasonably preserve the natural character of the area and prevent property damage of the type generally attributed to run-off rate and velocity increases, diversions, concentration and/or unplanned ponding of storm run-off. (Department of Public Works) 34. Pursuant to Chapter 15, Articles I and II of the Weld County Code, if noxious weeds exist on the property or become established as a result of the proposed development, the applicant/landowner shall be responsible for controlling the noxious weeds. All vegetation, other than grasses, needs to be maintained at a maximum height of 12 inches until the area is completely deveiopod. (Department of Public Works) 35. Weld County shall not be responsible for the maintenance of on -site drainage related features. (Department of Public Works) 36. The applicant must take into consideration storm water capture/quantity and provide accordingly for best management practices. (Department of Public Works) 2. Upon completion of 1, above the applicant shall submit a Mylar plat along with all other documentation required as Conditions of Approval. The Mylar plat shall be recorded in the office of the Weld County Clerk and Recorder by Department of Planning Services' Staff. The plat shall be prepared in accordance with the requirements of Section 23-2-260.D of the Weld County Code. The Mylar plat and additional requirements shall be submitted within thirty (30) days from the date of the date of approval. The applicant shall be responsible for paying the recording fee. (Department of Plant -Mg Services} The Department of Planning Services respectively requests the surveyor provide a digital copy of this Site Plan. Acceptable CAD formats are .dwg, ,dxf, and .dgn (Microstation); acceptable GIS formats are ArcView shapetiles, Arclnfo Coverages and ArcInfo Export files format type is .e00. The preferred format for Images is .tif (Group 4). (Group 6 is not acceptable). This digital file may be sent to maps co.weld.co.us. (Department of Planning Services) No activity shall not occur nor shall any building or electrical permits be issued on the property until the Site Plan plat is ready to be recorded in the office of the Weld County Clerk and Recorder. (Department of Panning Services) 5. In accordance with Weld County Code Ordinance 2005-7 approved June 1, 2005, should the plat not be recorded within the required sixty (60) days from the date the Administrative Review was signed a $50.00 recording continuance charge may be added for each additional 3 month period, It A-574--,frern Site Review conditionally approved by: Kim Ogle, Planning Services Date: jtit 2, 2011 John Scales Galloway & Company, Inc. 5300 DTC Parkway, Suite 100 Greenwood Village, Colorado 60111 Hello