Free Amended Complaint - District Court of California - California

Case 5:07-cv-04808-JF

Document 7-9

Filed 10/18/2007

Page 1 of 4

EXHIBIT H TO FIRST AMENDED COMPLAINT

Case 5:07-cv-04808-JF

Document 7-9

Filed 10/18/2007

Page 2 of 4

SECURED

PROMISSORY NOTE

(am/pm Miiii Market)
FQR VALUE RECEIVED, STlNENTERPRIS'E, INC., a California corporatipn, "Borrower") hereby¡:romises tø pay

(hereìnafter referred to as

to . BP WESTCOAST PROÒUCTS LLC, a Delaware limitcdliability cQmpany
"Maximum Loan Amount"), or so much of that Sum as
("Note"), . plus interest as specified below. This Note cvidenCes.a loah

(hereinafter referrédtó as "Leiidet"),or order, on orbeforê , the principaL Stil) of Two Hundred
Twenty Five Thousand and Noll 00 Dollars ($225,000.00) (the may be advanced under this promissory note

("Loan") from Lender to Borrower.
I. This Note Îssect¡red by Filing ("Decd of Trust") covering certain real a Deed ççÎ Trust with and personal

Assignment of Rents, Security Agreement and Fixture
property, as are two of several Loan Documents,

be secured by other collateraL. This Note and the Decdor Trust

therein described (the "Property"). It inay also as dcfined and
the Loan
of the maturity of this Note.

designated in that certain Loan Agreement ("Loan Agreement") between Lender and Borrower. Some or all of Documents, including the Loan Agreement, contain provisions for the acceleration Capitalized terms used herein have themeaningsassígned to thel'n in

the LOah Agreement, unlèssotherwise de.fned

herein
2. The unpaid principal balance of this Note from day to day outstanding, \~~hìch ¡snot past due, shall
bear interest at a Lixed rate of interest equal to Four and payable in arrears on such date an Seventy Five percent. (4.75%) per annum.

i Interest will be

successive anniversary of make annual principal reduction payments as provided in the Loan Agreement. Principal and interest are subjeci to aiiiiual forgiveness in accordance with the terms arrd conditions set forth in the Loan Agreement.
annual basis beginning on the Fïrst Anniversary Dale and on each the Loan. Barrower shalJ also during the term of 3. All payments of this Note immediately

shall bê made in lawful money of thè United stares of America in
the holder

available funds at Lender's offces at 4 Centerpointe Drive,Suíte 300, La Palma, Califorrlia 90623-1066,

Attention: Contract Dealer Loan Administration, or at such other place or to such account as

hereof shall have

designted to Borrower in writing.
4. AU principal andallaq;ruedand unpaid interestshall bediieand pa:yabIe no ist\''eTty (20) years following later

than the date whicl1

the B~inessOpen Date ("Maturity Date").
advance if that would cause

5.. Lender shallnot be required to make any

the outstanding prHicipaI ofthis

Note t()exceed the Maximum Loan Amount.
6.
Borrower may prepay the principal balance of this Note,in whole or in

part, at any time without

penalty .
7. If Lender has not received the the end of five (5) business days after the full amount 'of any

payment, other than the final principal payment, QY
shall pay a late

date when due, Borrower

charge to Lender in the amount of

five percent (5%) of the overdue payinettt. InaddiHon to' the

fOregoing, Borrower agrees to pay interest on any and all

sums. duë under this Note from the payment due date unti the date fully paid by Borrower, such interest to accrue at a
rate of interest equal to thc"prime rate" (asrepòrted by the WallStteet Journal) plls tWo percent (2%) p.er annum but in
no event greater than the maximum amount petmittedby law

(thè "Default Rate").

8. From and aftr maturity of

all sums then due and payable under this Note, including all iinpaid principal, accl1edinterestand any outstanding hereunder, shall bear outstanding

(whether upon the Maturity Date, by acceleration or otherwise), other sums interest until-paid in (ull atthe Default Rate. Compounding ofinterest may result if
this Note

departent should bb consuited prioriò each 10anc1osil1g to verify

loans. . . .
The interest ratècurrently approved for CD Loans is 4.75% the

interest hereunderaçcrues interesta:tthe Default Rate.

per annum butis subject tochange~ The DP tax
current interëstrate approved for BPWCP CD

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Case 5:07-cv-04808-JF

Document 7-9

Filed 10/18/2007

Page 3 of 4

..

9. If any of the following "'Events of Default" occur, thi~ Note shall terminate, and at the nolder's option, exercisablc in

any obligátion Of the its sole discretion, all

holder to make advances under sums of principal and interest

under this NoteshaU become immediately due and payable witholltnotice of default, presentment or demand for
payment. protestor npticeof nonpayrrentor dishnnQr, or

other nOtices or demandsohny kindttr character:

(í¡) Borro\ver rails to. perform airy obligation under this Note amounts due, and does not curc tha1'failurë within five (5) business days after tlledate when

to pay principal, intcrest or other due; or

(b) document) occurs.

Undcr3ny of the Loan Documents, a default or

"Event of Default' (as dcfincd in that

(c)

Borrower becomes the subject of any proceeding arising under II U.S.C. ("Insolvency

Proceeding").
10, If ¡¡ny lawsuit, reference or arbitration is commenced which arises out of or relates to this Note, thc

Loan Documents or the Loan, the prevailing party shall be emitled.to recòver fròmeach other party such sums as the
court, referee or arbitrtor mayadjudgetobeteasonable attorneys' fees in suëh action, in addition to costs otherwise allowed by law. In all other sîtuations, including Lender'$ costs and expenses, including attorneys' fees, which

and expenses

any Insolvency Proceeding, Bòrrowcr agrees to pay all of
may be incuITed in enforcing or protecting Lender's rights

Qrinterests. From the time(s) incurred until paid in full to Lender, all such sums shaH bear interest at the Default Ratc.
¡ i. of This Note is govemed by the lawsoftbe State of

California, without regard to the choice of law rules

that State.

12. Borrower agrees that the holder of this Note may accept additional or substitute security for this Note,
or release any security or any party liable for this Note, or extend or renew this Note, all without nåtice to

BOITower and

withoui affecting the liability of BOrlower.
13. If Lender delays in shall not constitute a waiver of exercising or fails to exercise any of its

rights i.mder this.Note, tllatdelay or failure

any of Lender's rights,orofanybrcach, default or failure of conditíon of

or under this
in conDêctip!1 with this

Note. No waiver l"y Lenclcr orany of its rights, or orany such breach, dëfaultor failure ofcônditiônshall be effective,
unless the Notè or under waiver is expressJystated ina writing signe4 by Lender. All ôf Lender's remedies applicable law shall be cumulative,andLender'sc",erciseoÜ\:nyone OJ mOre, of

those remedies shall rtot

(;onstitute an elëction of remedies.
i 4. This Note inures. to and

binds the heWs, legalrepresentati Yes, successors aid assigns of Borrower årid

Lender; provided; however, that Borrower may not assign this Note ôrany Lôan funds, onissign ordelegatë any of rights or obligations under the Loan Documents, without the prior

its
of

written eonsentofLenderin each instance. Lender in
Note, the Deed

itssoIe.and absolute discretion may, at any time,

sell, transfer, or assign this

Trust and the other Loan

Documents.
15. If more than one person or entity are signing this Note as

Borrower, thejr obligations under this Note

shall be joint and severaL.

IN WITNESS WHEREOF, this Note has been duly executed and

delivered by Borrower as of

the date set forth

above.
See signatures on the next page

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Case 5:07-cv-04808-JF

Document 7-9

Filed 10/18/2007

Page 4 of 4

STTN ENTERPIUSE,.INC., a Cali(ornia corporation

BY'\z\~ 'Ç'
N~un.e: Nazim S.M. Faqu D'an
Tile: CEOandPrcsident

By ~ j~~J.J Name: SaycdM; ,Faquiryan
Title: Sccrctaryand Trcasurer

-"-~-~-

3

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