Free Amended Complaint - District Court of California - California

Case 5:07-cv-04808-JF

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Filed 10/18/2007

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EXHIBIT G TO FIRST AMENDED COMPLAINT

Case 5:07-cv-04808-JF
RECORDING REQUESTED BY

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"" 11111111111111111111111111111

FlhST A~ERlCAN TITLE

2007-0003257
Recorded
Official Records County of San Benito
I REC FEE
I I I I I f 7ß.æ

(

'I 08 - ~1 ¿)(; l~i1
Recording Requested and

\\iicn Recorded Return To:
1\1' 'We)! Cuast ProdUCLS LLC -- ( 'L'llIerpoinLe Dr., LPR 4-243 1..1 I'a I ilia. C!\ 90623-1066

JtE PA IDZiuZ
Chrk-Recorder

.'\ tin, Uaiiiel J. Rolf i'acilit,,: X2461dSCDB65975
()31 San Felipe Ruad

Ø2:0Ø 11r-207 I Page 1 of 22

I OS

~êcZr. CJ y~Of~ ì() dYSGU1

Space Above por Rt:eorder's Use Only

~'51~~ hh' L'OtU7i¡!a£ E"CUMBRANCE OF TENANT'S INTEREST CONSENT TO
IIII~ (,ONSE'iT TO ENCUMBRANCE OF TENANT'S INTEREST ("Consent"). dated as of frtJ rc ~,

2(1)". I:; made by A V A Global Enterprise, LLC., a California limited liability company ("Landlord") in favor of BP \\TST rOAST PRODCCTS LLC. a Delaware limited liability company ("Lender").
Recitals
1\, Landlord is the owner of that certain real property located in the City of Hollister, County of San
(knltn. Stale otTalifèèrnia. more particularly described in Exhibit "A" attached hereto (the "Real Property").

B, Landlord and STIN Enterprise. Inc., a California corporation ("Tenant") previously entered into ¡)
~i "LInd ILase dated January 200) with respect to the Real Property ("Lease"). A "Memorandum of Lease" shall be ie:,'\\idt'd in tIn: San Benito County Offcial Records.

C. Tenant intends to construct a gasoline station and convenience store on the Real Property or make ccrrain alteratii\ns to an existing gasoline station and convenience store. In cormection therewith, Tenant will be entering inno certain agreements with Lender to sell ARCO-branded gasoline at the gasoline station and operate the
cnil\enienc\: store as an am/pm mini market franchise. The Real Property as improved with any existing or future Il1pl')\''rnenns thereon shall be referred to herein as the "Property"
U Tenan¡ has requested that Lender make a luan (the "Loan") to Tenant in the amount of

IllIndlcd and '\0; i 00 Dollars ($400.000.00) in connection with such construction or renovation. The Loan shall be Si',:iire¡j by (1m certain Deed of Trust with Assignment of Rents, Security Agreement and Fixture Filing dated as of
n ('1\ date herL'with ("Leasehold \1ortgage"). which Leasehold Mortgage shall encumber Tenant's leasehold estate in tlh' 1'1 upcrty. The Leasehold Mortgage also encumbers Tenant's personal property, including, but not limited to. all nILI.:handise. equipment, fixtures. furnishings, furniture, machinery, inventory, tools and other property of Tenant

up to Four

I",'ated al or used in connection with Tenant's operations upon the Property, together with all additions,
';lIhsiitutinns. replacements and improvemems to the same, whether now owned 01' hereafter acquired and the
pr1h':i:eds ,mu products thereof (collectively. the "Personal Property").
I: .
ihL' L.lJJII.

Tenan( has requested Lhat Landlord execute and deliver this Consent to Lender as a condition to l.andlord acknowledges that Lender would not make the Loan to Tenant in the absence of this

/\.~h:l.nh:lll

Agreement

\11\\'. IH EREFORE. Landlord agrees as follows:
I Consent to Leasehold Mortgage. Landlord hereby consents Lo the recording of the Memorandum

Dr I,ease and to the encumbrance of Tenant's interest in the Lease and the Propert by means of the recording of the
¡: Ct. .\ii)/ ¡gage

THis document signed in Counterpart

,.:-u,

, I ""senl I" bicunnnranee or Tenanr's Interest v I.doe

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1 ßçresenlations and Warranties of Landlord. Landlord hereby represents and warrants to Lender

ihar: (a) Landlord is the owner of the Real Property, (b) there are no mortgages and deeds of trust encumbering
i.~II1c1iords interest in the Real Property except as otherwise disclosed on Exhibit B, (c) the Lease is unmodified I e.',,:~p! as shown on Exhibit C) and in full force and effect, and (d) LO the best knowledge of Landlord, neither
T Cl1ant nor Landlord is in default under any of the terms, covenants or conditions contained in the Lease nor has any

e\'cn! occurred which would, with the passage of time, or the giving of notice, or both, constirute a default under any ot ihe tcrms, covenants or conditions contained in the Lease.

\ Amendments. Unless Lender otherwise consents in writing, such consent not to be unreasonably
"lillJJt'ld Dr delayed, (a) the Lease shall not be amended or otherwise modified, and (b) except as otherwise provided il! ."c',tHin 'i \11IOLv. the Lease shall not be cancelled. terminated or surrendered prior to the expiration of the tcrm

tllvltol
4, Lender's Right to Receive Notices. Landlord shall use its best efforts to mail or deliver to Lender

I at the address set forth in Section 13 below) a duplicate copy of any and all notices (individually, a "Detault
Nutlce" )which Landlord may from time to time give to or serve upon Tenant pursuant to the provisions of the Lease, and siieh copy should be mailed or delivered to Lender simultaneously with the mailing or delivery of the same to
Tenanl
.'. Conditions on Termination after Tenant's Default. If Tenant shall default under the Lease or reject the' Lease in a proceeding under i I U.S.c. or if any other event shall occur that would permit Landlord to terminate

111\, Lc'ilsc' (ur accept a surrender or termination uf the Lease by Tenant) ur exercise any other rights or remedies

uii,ki the Ltase (any such deÜiult. rejection, or other event being refened to herein as a "Tenant Default") and I c'nalll shall lail to cure such Tenant Default within any applicable grace period provided in the Lease, Landlord
~I''rees that Landlord shall not terminate or accept a surrender of the Lease or otherwise enforce any of its rights or reiicdies under the Lease as a result of such Tenant Default unless (a) Lender shaIJ have received written notice of

,;ueh Tenant Default, and (b) Lender shall have failed to remedy such default or acquire Tenant's leasehold estate or commence foreclosure or other appropriate proceedings in the nature thereof, aIJ as set fort in, and within the time speci1ied by. Seciion 7 below.
6. Lender's Rii.dit to Perform on Behalf of Tenant. Lender shall have the right, but not the

uhligaiion. at any time prior to termination of the Lease and without payment of any penalty, to pay all of the rents

,jiie under the Lease. to effect any insurance, to pay any taxes and assessments, to make any rep¡JJrs and
impr.,\ cnnents. anel to do any act or thing which may be necessary and proper to be done in the performance and ,)h';crvance of T enants obligations under ihe Lease to prevent termination of the Lease. All payments so made and
aii tlllllgS su done and perfonned by Lender shall be as effective to prevent a termination of ""nld have bL'en if made, done, and performed by Tenant instead of

the Lease as the same

by Lender.

i. Lender's Right to Cure Tenant's Defaults. If any Tenant Default occurs, and if the Tenant Default

i~ ,udi ihal possession of the Property may be reasonably necessary to remedy the Tenant Default" Lender shall
hill'L' IIniil IhL' tenth (10th) day atier expiration of the applicable cure period specified in the Lease or in any Default

!\otice (whichever is longer) within which to remedy such Tenant Default, provided that (a) Lender shall have fully
cured any detàuli in the payment of any monetary obligations of Tenant under the Lease within such ten (10) day pC'lI"d and shall continue to pay currently such monetary obligations as and when the same are due and (b) Lender sll~ill h,1\t acquired tenant's leasehuld estate created by the Lease or commenced foreclosure or other appropriate
imic-:edings in the nature thereof within such period, or prior thereto, and is diligently prosecuting any siich

¡¡mc'et'dings, All rrght of Landlord to tenninate the Lease as the result of the occurrence of any such Tenant Default sliall be subJecl to, and conditioned upon, Landlord first giving Lender a written notice of any such Tenant Detault aiid Lender failing to remedy such default or acquire Tenant's leasehold estate created by the Lease or conunence t", c'll"suri: or "iher appropriate proceedings in the nature thereof as set forth in and the within times specified by tiii, Section 7
S, Tenant Defaults Which Cannot Be Remedied. Any Tenant Default under the Lease which in the

I\~\l\le thereal (annaL be remedied by Lender shall be deemed to be remedied if (a) within ten (10) days after
e'\pir;Jiion of the applicable cure period spccitìed in the Lease or in any notice of Tenant Default (whichever is 1,)li~C'l). or prior thereto, Lender shall have acquired Tenann's leasehold estate created hereby or shall have

~2.j" i ('''n~cnl 10 ~ncurnbrance oflenanr's Inleres! vl,doc

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lommenced and is diligently prosecuting foreclosure or other appropriate proceedings in the nature thereof; (b) ¡,c'ndcc shall have fully cured any default in the payment of any monetary obligations of Tenant Linder the Lease ,,\hidi do not require possession of the Propert; and shall continue to pay currently such monetary obligations as and wheii ihe same are due and (c) after gaining possession of the Property, Lender performs all other obligations of l,nam under the Lease as and when ihe same are due.
9. Tolling of Foreclosure Time Periods. If Lender is prohibited by any process or injunction issued

h.. :.1)' court or by reason of any action by any court having jurisdiction of any bankrptcy or insolvency proceeding

IIvoh'iiig Tenant from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thtlc'oL ihe time periods specified in Sections 7 and 8 above for conuencing or prosecuting such foreclosure or nlii.:r approprrate proceedings shall be extended for the period of such prohibition. However, Lender must have
i'ully cured any default in the payment of any monetary obligations of Ten

ant under the Lease and shall continue to

pJV (unently such monetary obligations as and when the same fall due.
10. Nondisturbaiice of Lender's Possession: Lender's Liability and Rights. Foreclosure of a
I"'J~thùld Murtgage, or any sale thereunder, whether by judicial proceedings or by virtue of

(he LCJsehold Mortgage, ur any conveyance of the leasehold estate created by the Lease from Tenant to Lender ihlUugh, or in IIeu oj: foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent or Landlurd or constitute a breach of any provision of or a default under the Lease. Upon such foreclosure, sale, or
,'oiiveyance, Landlord shall recognIze Lender. or any other foreclosure sale purchaser, as tenant under the Lease. If

any power contained in

I.,:nder becomes the tenant under the Lease, (a) Lender shall have the same rights as Tenant with respect to any uii'xer,:ised extension options. rights of tirst refusal, rights of first offer or purchase options contained in the Lease.; I h) Lender shall be personally liable for the obligations of Tenant under the Lease only for the period of time that
L'_'Ilder r.:mains tenant thereunder; and (c) Lender shall have the right to assign ile Lease to a nominee or assignee ()¡ Lender. subject to Landlord's approval, which shall not be unreasonably withheld or delayed, without Lender

assuming ihe obligations of Tenant under the Lease. If Lender subsequently assigns or transfers its innerest under thi' Lease after acquiring the same by foreclosure or deed in lieu of foreclosure, and in connection with any such Jssignnnenr or transfer Lender iakes back a mortgage or deed of trust encumbering such leasehold interest to secure a portion of the purchase price given to Lender for such assignment or rransfer, then such mortgage or deed of trust shall he considered a Leasehold Mortgage as contemplated under this Section 10 and any other provisions of this
Cl1nsent intended for the benefit of Lender.
(a)

Lender

I \ Rights in Personal Property. Landlord acknowledges and agrees that all Personal Property of

i- ,1I,llIt whether or not aftxed to (he Property, and notwithstanding any Lease provisions to the contrary. shall rL'lliain persunal property and shall not be subject to any lien, claim or other interest of Landlord. Landlord consents (ü ¡he installation of the Personal Property on the Property, agrees that Lender may do to and with the Personal

Property any or all of the acts below enumerated, and grants Lender a right, as set forth below, to enter into
pl1ssL'ssion of the Property to do any or all of the following (the "Penntted Actions") with respect to the Personal

I'roperry: assemble, have appraised, display, sever, remove, maintain, prepare for sale or lease, advertise, inspect,
repair, IIase, transfer, amI/or sell (at public auction or private sale). Lenùer shall have the right to enter into and to

",'cupy the Property, for the purposes described above, for an actual occupancy period of up to one hundred twenty dd';, (at Lender's discretion), provided Lender has cured any monetary defaults under the Lease as provided above in Sections 7(a) and 8(b). following the later of: (a) Landlord placing Lender in possession of the Propert; and (b)
dbaiidonment or surrender of the Propert by Tenann, whether vo)untary or involuntary. Landlord shall be

reiiiibursc:d for. or Lender shall cause to be repaired, at its expense, all physical damage to the Property caused by

til" rt'moval of rhe Personal Property. Landlord acknowledges that at any iime prior to Landlord placing Lender in
p' isSL's,lon of the Property, or abandonment of or surrender of the Property by Tenant, Lender may take any or all of

t!w f-tfiiiilled ¡\ctions subject only ro Lender's agreements with Tenant.
12. Notices. Any notice required or permtted to be given to any party under this Agreemenr shall be

iii \\ riling and shall be given by (i) facsimile transmission, (ii) certified mail return receipt requested, or (iii) hand (kll\-:i~:. addressed as follows:

,,'2~(, i t. nnSCJ1( Ie) Eneuiibr"ncc of Teiiunts I iileiesl V I.doc

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(a)
irto Landlord:

A V A Global Enterprise, LLC, 631 San Felipe Rd.

Hollister. California 95023 Attention: J\azim M.N. Faquiryan
Toan To Tao To

Sayed M.N. Faquiryan
Facsimile No.:

(b)

I l to Lender:

BP West Coast Products LLC
4 Ccnterpointe Drive

La Palma, Califol1ia 90623-1066 Attention: Site Acquisition Manager Facsimile No.: 714-670-5 i 78

Such iio(Ices shall be deemed received (i) upon delivery, if delivered by hand or by facsimile transmission (with
,'l1iilirinaiiun l.l æceipt), or (ii) three days after having been deposited in the U.S. mail, postage prepaid. if mailed. .-\ii:: rany may change its address for notice hereunder by notice given as provided above.
i 3 Counterparts, This Consent may be executed in any number of counterparts, each of which shall

cl1nsiirUle one originaL. but all such counterparts taken together shall constitute one and the same instrument.
14,

Termnation of this Consent. This Cunsent shall automatically terminate upon full repayment of

I.iian

15 Successors and Assigns. TIll Consent shall inure to the benefit of and be binding on the parties
Ih.'rd') and their respective successors and assigns,

16, Governing La \\. This Consent shall be governed by and construed in accordance with the laws of ih\' Slare ntCalitornia.
1 ì, Entire Agreement. This Consent contains all of the agreements and understandings between the
paniè: with n:spcct to the subject matter of this Consent. All prior oral or written promises, representations,

agret'inents or understandings, express or implied, in connection with the subject matter of this Consent are expressly merged herein and superseded hereby. In the event of any conflict between the terms and conditions
coiiiained in this Consent and the terms and conditions contained in the Lease, the terms and conditions contained in
tli" C'111seii ,hall prcvail.

18, Attorney's Fees. If any lawsuit, reference or arbitration is commenced which arises out of or
Ic'Lli~, to il\I Consent. the prevailing, party shall be entitled to recover from the other party such sums as the court, 1l'ltlët or Qrbitrator may adjudge to be reasonable attorneys' fees in siich action, in addition to costs and expenses
IItl'ël ivi,e allowed by law.
i~ wrT!\ESS WHEREOf, the parties have executed this Consent as of

the date first written above.

SIGNATURES ON FOLLOWING PAGE

4

\:~() I ('i)ii,~nl 10 Encumbrance ofTenan¡'s Imerest v I.doc

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L;
"1\\,IJLOIi"
:\ VA ()LOI3AL ENTERPRISE, LLC.,
a C a I i fornia corporation

13\' ~~~
Sayed \1.:-. Faquiryan
LJ :' lùanTo-

~ !~d~__~_.~~~
LioTo

Ih:

SJyed M.N. Fa iryan

-\( iRi:D A)JD ACCEPTED BY:

'1IN:\\lT'
STTN ENTERPRISE, INC.,
J ~';, I i tl1rnla corporation

I\'.

IJ. ~-7
SJyed ~i.N. Faquiryan
Sc'CCetary and Treasun:r

"i I-\,DER"
Hi' WI:ST COAST PRODUCTS LLC, ,i lkl;¡ware limited llability company

H.

.I ç:1' \,1. Cary

.. - .... '--'_._-----

\'I~t Presidenl

, '-I', i I',)nsc'nt ILl Eneunnhral1cc uf T enanl 's Inicrest v (,doc

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Landlord's Lender's AO'reemenr

.._._-~. -'- a ~~.- i-~ .___r-Landlord's Lender"), together ,,\ Itll ~¡Jll\s successors and assigns and together with any pa~ obtains title to the Real Property by means ura
i-ul'L'closure. a deed in lieu of foreclosure, or otherwise, hereby agree that upon obtaining title to the Real Property iklt (i) any and all of such parties obtaining tide to the Real Property shall be bound by all of the tenns, covenanls. (\)IJii ions aiid agreements contained in this Consent as if such party were the Landlord hereunder and (ii) upon

Lèl1kk or a successor or assign of Lender obtaining Tenant's interest in the Lease, by means of foreclosure, an

assignment by Tenant in lieu of foreclosure, a new lease being entered into, or otherwise. that Lender and Lenders' participants and their successors and assigns shall succeed to the Tenant's interest in that certain Subordination, ',iin-I)istulbance and Attornment Agreement executed between Landlord's Lender and Tenant contemporaneously
II,'r,'wiill as if Lender were the original tenant under such Agreement. The terms of such Subordination, NonI )isliirbance and Atlornment Agreemeiit shall not he amended or moditìed without Lender's prior written consent.

"LANDLORD'S LENDER"

'Y\~
By:
Its:

(Printed Name and Title)

~~.!(11 Consent 10 Encurrbrance otlenants Interest v I.doe

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1
ACKNOWLEDGMENT
Si;iie ,,¡' California
( '''ii nt v of

~ :; n~ h

,

. , . ~''¥'f Ç'~~\ìG
-~¿" /~~-', personally appeared

. '.., personalIy known to me (or proved to me
Oil ¡he' oasiS' satisfactory

evidence) b e per (s) whose name(s) isMw subscribed to the within instrument

and ;.cknowledged to me that he/~y executed the samc in his'Rilr'tI¡eir authorized capacity(ies), and that by hi.' Ii.:i'thtii signature(s) 011 the instrument the person(s), or the entity upon behalf of which the pcrson(s) acted. "\l'liii~d ihe instniment.
\\'1 l\--SS iiy hand anù omcial seaL.

~?~2_::=-.::=-_d ---(~igll£H\U.~) -- - . . "

'~?

-. Notay Pu . CcM

" WI FA Com' 1--61

--

Sata Claa Cou MvCo EEoU 13.

ACKNOWLEDGMENT
:-i;.ie "i-Cali!()rnia

(',)Ull\' of ,.,,5~' Ýl

'-: / 6/UTv
,
lo~r i

~u.b\\c.
, personalIy appeared

,¿', . , personally known to me (or proved to me
"ii ihe' basi 0 satisfactorye iden to be e person(s) whose name(s) iS/Miubscribed to the within instrument

aiid acknowledged to me that he~y executed the same in his/lll!r,'tRl!ir authorized capacity(ies), and that by

his hdtR~ signature(s) on the instrument the person(s). or the entity upon behalf of whieh the person(s) acted,
nenllt'd the instrument.

-~~~ -~
\\i l\ESS iiy hand and official seaL.

!'-ign;iiiie) ~_..-

"

- Com, 149761

'IMI FAQU 3D MvCa. ExpAA 13.

Notay Publ - caarom Sato Ciao Couty

7

~:~-l(, i '~'onscl1i to Eiicuiibr;:nce of Tenant's Iniercst v I.doe

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ALL-PURPOSE ACKNOWLEDGMENT

i

On

before me,
SIGNERISI

personally appeared
ß"pcrsoiiaiiy known to me

- OR -

o proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that h~hey executed the same in hi~heir authorized

................"''' ""--r
MINA FAQUIRVAN

capacity(ies), and that by hi~their
signatures(s) on the instrument the person(s),
or the entity upon behalf of which the

i -.; 'Notar Publ. Colfom $

~a~' Commison EE.uI3. zø My CO .1494761 i

~ Sata Ciao Couty i

-------------- J

person(s) acted, executed the instrument.

;;4~,~:.~alsea~
OPTIONAL INFORMATION
The information below is not required by law. However. it could prevent fraudulent attachment of this acknowledgment to an unauthorized documcnt.

CAPACITY CLAMED BY SIGNER (PRINCIPAL)
o INDIVIDUAL o CORPORATE OFFICER

DESCRIPTION OF ATTACHED DOCUMENT

---- - -- - - -_n- --ITÙ..Et~;Ï.
o P..\RTNER(Sj
o .-\TTORI\EY-IN-FACT

TITLE OR TYPE OF DOCUMENT

NUMBER OF PAGES

o TRUSTEE¡SI
o (ilJt\KDIAN/CONSERVATOR

o OTHER:

DATE OF DOCUMENT

.--'----.. ---- .-

- ------_. -_.-..._.
RIGHT THUMBPRINT
OF

OTHER

SIC;NER IS REPRESENTING:
'.~~\i C'): PI HS()~I\1 OR l:1\TITY!ll:Si

;¡ ..
.c
£ §

..

.Ë
C.

-.-._----- -_._-.-

SIGNER

;§
15

-\I'.-\.\N

VALLEY-SIERRA, Hoo-362.3369

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ALL-PURPOSE ACKNOWLEDGMENT
--,h

1

1 ss . .
On
personally

appeared

. ,Ie;
- OR -

,

/!L r ~~ ,N't~¡c
/ (Naf Y) :, . ~ I
S1GNëR(SI

~erSOnallY known to me

o proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is, subscribed to the within instrument and

acknowledged to me that he/i,i.,,/theyexecuted

~_.. - ~~~~--"""'''r
MINA FAQUIRVAN

- ~:~ . ComlTon' 1494761

~ -. Notay Pu . Calom Sato CIo Couty

the same in his/ker/tRcir authorized capacity(ies), and that by hislherltbeir
signatures(s) on the instrument the person(s),
or the entity upon behalf of which the
,

MvCo 1a.zø

person(s) acted, executed the instrument.

'7/#o:
OPTIONAL INFORMATION
CAPACITY CLAED BY SIGNER (PRINCIPAL)
C INDIVIDLAL C CORPORATE OFFICER

WITNESS my hand and offcial seaL.

SiG~E

--

The information below is not required by law. However, it could prevent fraudulent attachment of this acknowledgment 10 an unauthorized document. DESCRIPTION OF ATTACHED DOCUMENT

--. -_. ----C PARTNERfSi
o ".HORNEY-iN-FACT TRI;STEE(S\

TITLE OR TYPE OF DOCUMENT
I1TLF.(SI

NUMBER OF PAGES

o o o

(i L JA RDIA N/CONSERVATOR

OTHER: ---

DATE OF DOCUMENT

-------

--RIGHT THUMBPRINT OF SIGNER
VALEY-SIERRA, 80362-3369

OTHER
~ .t

SIGNER IS REPRESENTING:
"""H' OF I'rR~Or.(s) OR I;NTITYilES\

'C:

E

"-

~
Õ £

~
AP,A )1')'

c.

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10
EXHIBIT "A"
Legal Description of Real Property

I III: i. 1\1\D REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF HOLLISTER, COUNTY OF ').\ "! nEJ\ITO, STATE OF CALIFORNIA AND is DESCRIBED AS FOLLOWS:
ALL. THAT REAL A~D CERTAIN PROPERTY LOCATED IN THE CITY OF HOLLISTER, COUNTY OF SAN

BE\ITO, STATE OF CALIFORNIA, BEING A PORTION OF PARCEL 1 AS SAID PARCEL is SHOWN
LI'U'\ THE PARCEL MAP RECORDED N BOOK 7 OF PARCEL MAPS AT PAGE 59, OFFICIAL RECORDS, A:\D HEI?'G MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOL;THWESTERL Y CORNER OF PARCEL i AS SHOWN UPON SAID MAP;

THI:l\Cf: 1' 2 DEGREES 06 MINUTES 20 SECONDS E, 183.48 FEET ALONG THE RIGHT OF WAY OF SAN
ITIIPF ROAD (STATE HWY. 156) TO THE TRCE POINT OF BEGINNING;

TIII~I\('E FROM SAID TRUE POINT OF BEGINNI~'G, CONTINL'ING ALONG SAlD RIGHT OF WAY, N 2 j)LCi~EES 06 MINUTES 20 SECONDS E. 176.48;

TIH::\CE )\ORTHEASTERLY ON THE ARC OF A TANGENT CURVE TO THE RIGHT CONCAVE TO THE SOl.;THEAST. HAVING A RADIUS OF 20.00 FEET. THROUGH A CENTRAL ANGLE OF 90 DEGREES 28 ,\;lINl.TES 10 SECONDS, FOR AN ARC LENGTH OF 31.8 FEET TO A POINT ON THE SOUTHERLY ~1(iHTOF WAY UNEOFCHAPPELLROAD.

TfII:'JCE EASTERLY ALONG SAID RIGHT OF WAY LINE, S 87 DEGREES 25 MINUTES 30 SECONDS E
1.)(,:)4 FEET.

TIII:NCE LEA VI'iG SAID LINE. S 2 DEGREES 06 MIN1;TES 20 SECONDS W, 222.8 I FEET:

Tf-W!'Cl: N ~: DEGREES 25 MINUTES i i SECONDS W, 90.03 FEET:
i HI:"JCE ì\ ïCJ DEGREES 10 MINUTES 29 SECONDS W, 60.93 FEET:

THENCE N 4 I DEGREES 33 MINUTES 35 SECONDS W, 24.26 FEET TO THE TRUE POINT OF
f:E(jl"J1'ING
.-'1'" l)~ 1- i(jO-040

8
~2--(1 i COil

sent 10 Encumbrance or Tenant's Iniercst v I.doe
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EXHIBIT "8"
Existing Mortgages and Deeds of

Trust Encumbering the Real Property

Oiie Onl~':

rviw
'\iiii.ii/it:

Blanket Encumbraiice

$1,925,000.00
Omni Financial

¡'iriii
R.ec'urdeJ
l)o\c '\ù.

::AVl\104

~2-l(\i Consent 10 Encumhrance otT~nanl's Imerest vl.doc

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Iv
EXHIBIT "C"

Modilcations to Lease

None

10

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,3
Recording Requested and

When Recorded Return To:

I3P West Coast Products LLC
4 Centerpointe Dr., LPR 4-243

La Palma, CA 90623- I 066 Attn. Daniel J. Rolf Facility: 82461/SCDB65975 631 San Felipe Road
11 f Hollister, CA 95035 . ) 7() )L..,; 9 ;p Ð
Spae Above For Recorder's Use Only

L. cUp V vor ~ ~ ,: 1J-j

CONSENT TO ENCUMBRANCE OF TENANT'S INTEREST
n liS CONSENT TO ENCUMBRANCE OF TENANT'S INTEREST ("Consent"), dated as of .mcÁ .l

2007. is made by A V A Global Enterprise, LLC., a California limited liability company ("Landlord") in favor of BP WEST COAST PRODUCTS LLC, a Delaware limited liability company ("Lender").
Recitals

A. Landlord is the owner of that certain real propert located in the City of Hollister, County of San
Ucnitii, State of California, more particularly described in Exhibit "A" attached hereto (the "Real Propert").

ß. Landlord and STTN Enterprise, Inc., a California corporation ("Tenant") previously entered into a

dated January 2005 with respect to the Real Propert ("Lease"). A "Memorandum of Lease" shall be recorded in the San Benito County Offcial Records.
ground lease

C. Tenant intends to construct a gasoline station and convenience store on the Real Propert or make

certain alterations to an ex.isting gasoline station and convenience store. In connection therewith, Tenant will be
entering into certin agreements with Lender to sell ARCO-branded gasoline at the gasoline station

convenience store as an am/pm mini market tTanchise. The Real Propert as improved with any existing or future improvements thereon shall be referred to herein as the "Propert."
Hundred and No/lOa Dollars ($400,000.00) in connection with such constrction or renovation. The Loan shall be

and operate the

D. Tenant has requested that Lender make a loan (the "Loan") to Tenant in the amount of up to Four

secured by that certain Deed of Trust with Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith ("Leasehold Mortgage"), which Leasehold Mortgage shall encumber Tenant's leasehold estate in
the Propert. The Leasehold Mortgage also encumbers Tenant's personal property, including, but not limited to, all merchandise, equipment, fixtUres, furnishings, furniture, machinery, inventory, tools and other propert of Tenant

located at or used in connection with Tenant's operations upon the Propert, together with all additions,
substitutions, replacements and improvements to the same, whether now owned or hereafter acquired and the

proceeds and products thereof (collectively, the "Personal Propert").
E. Tenant has requested that Landlord execute and deliver this Consent to Lender as a condition to

¡he Loan. Landlord acknowledges that Lender would not make the Loan to Tenant in the absence of this
Agreement.

Agreement

NOW. THEREFORE, Landlord agrees as follows:
I , Consent to Leasehold Mortgage. Landlord hereby consents to the recording of the Memorandum

of I.ease and 10 the encumbrance of Tenant's interest in the Lease and the Propert by means of the recording of the
Fee Mortgage.

This document signed in Counterpart

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2. Representations and Waranties of Landlord. Landlord hereby represents and warants to Lender

that: (a) Landlord is the owner of the Real Propert, (b) there are no mortgages and deeds of trst encumbering Landlord's interest in the Real Propert except as otherwise disclosed on Exhibit B, (c) the Lease is unmodified
(except as shown on Exhibit C) and in full force and effect, and (d) to the best knowledge of Landlord, neither T cnant nor Landlord is in default under any of the terms, covenants or conditions contained in the Lease nor has any event occurred which would, with the passage of time, or the giving of notice, or both, constitute a default under any of the terms, covenants or conditions contained in the Lease.

3. Amendments. Unless Lender otherwise consents in writing, such consent not to be unreasonably \Nithheld or delayed, (a) the Lease shall not be amended or otherwise modified, and (b) except as otherwise provided in Scl:tion 5 below, the Lease shall not be cancelled, tenninated or surrendered prior to the expiration of the term
Lhcrcot.
4. Lender's Right to Receive Notices. Landlord shall use its best efforts to mail or deliver to Lender

(at the address set forth in Section 13 below) a duplicate copy of any and all notices (individually, a "Default
Notice")which Landlord may from time to time give to or serve upon Tenant pursuant to the provisions of

the Lease,

and such copy should be mailed or delivered to Lender simultaneously with the mailing or delivery of the same to
Tenant.
5. Conditions on Termination after Tenant's Default. If Tenant shall default under the Lease or reject the Lease in a proceeding under i i V.S.C. or if any other event shall occur that would permit Landlord to terminate

the Lease (or accept a surrender or tennination of the Lease by Tenant) or exercise any other rights or remedies

under the Lease (any such default, rejection, or other event being referred to herein as a "Tenant Default") and

Tenant shall fail to cure such Tenant Default within any applicable grce period provided in the Lease, Landlord agrees that Landlord shall not terminate or accept a surrender of the Lease or otherwise enforce any of its rights or remedies under the Lease as a result of such Tenant Default unless (a) Lender shall have received written notice of such Tenant Default, and (b) Lender shall have failed to remedy such default or acquire Tenant's leasehold estate or commence foreclosure or other appropriate proceedings in the nature thereof, all as set forth in, and within the time
specified by, Section 7 below.
6. Lendei-'s Right to Perform on Behalf of Tenant. Lender shall have the right, but not the

obligation. at any time prior to termination of the Lease and without payment of any penalty, to pay all of the rents
due under the Lease, to effect any insurance, to pay any taxes and assessments, to make any repairs and
improvements. and to do any act or thing which may be necessary and proper to be done in the performance and

the Lease. All payments so made and all things so done and performed by Lender shall be as effective to prevent a termination of the Lease as the same
observance ofTenants obligations under the Lease to prevent termination of would have been ifmade, done, and performed by Tenant instead of

by Lender.

7. Lender's Right to Cure Tenant's Defaults. Ifany Tenant Default occurs, and if

is such that possession of the Propert may be reasonably necessar to remedy the Tenant Default" Lender shall have unnil the tenth (10th) day after expiration of the applicable cure period specified in the Lease or in any Default

the Tenant Default

Notice (whichever is longer) within which to remedy such Tenant Default, provided that (a) Lender shall have fully
cured any default in the payment of any monetary obligations of Tenant undenhe Lease within such ten (10) day

period and shall continue to pay currently such monetary obligations as and when the same are due and (b) Lender
shall have acquired tenant's leasehold estate created by the Lease or commenced foreclosure or other appropriate
proceedings in the nature thereof within such period, or prior thereto, and is diligently prosecuting any such

proceedings. All right of Landlord to terminate the Lease as the result of the occurrence of any such Tenant Default
shall be subject to, and conditioned upon, Landlord first giving Lender a written

and Lender failing to remedy such default or acquire Tenant's leasehold estate created by the Lease or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in and the within times specified by
Lhis Section 7.
8. Tenant Defaults Which Cannot Be Remedied. Any Tenant Default under the Lease which in the

notice of any such Tenant Default

nature thereof cannot be remedied by Lender shall be deemed to be remedied if (a) within ten (10) days after c\piraiion of the applicable cure period specified in the Lease or in any notice of Tenant Default (whichever is longerr, or prior thereto, Lender shall have acquired Tenant's leasehold estate created hereby or shall have

2
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\~
commenced and is diligently prosecuting foreclosure or other appropriate proceedings in the nature thereof; (b) Lender shall have fully cured any default in the payment of any monetary obligations of Tenant under. the. Lease
which do not require possession of the Propert; and shall continue to pay curently such monetar obl~gat~ons as
and when the same are due and (c) after gaining possession of

/.

the Propert, Lender performs all other obllgations of

Tenant under the Lease as and when the same are due.
9. Tolling of Foreclosure Time Periods. If Lender is prohibited by any process or injunction issued

by any £ourt or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding

involving Tenant from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the time periods specified in Sections 7 and 8 above for commencing or prosecuting such foreclosure or other appropriate proceedings shall be extended for the period of such prohibition. However, Lender must have
fully cured any default in the payment of any monetary obligations of

Tenant under the Lease and shall continue to

pay currently such monetary obligations as and when the same fall due.

10. Nondistubance of Lender's Possession: Lender's Liability and Rights. Foreclosure of a
Leasehold Mortgage, or any sale thereunder, whether by judicial proceedings or by virte of any power contained in the Leasehold Mortgage, or any conveyance of the leasehold estate created by the Lease from Tenant to Lender Ihrough, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Landlord or constitute a breach of any provision of or a default under the Lease. Upon such foreclosure, sale, or conveyance, Landlord shall recognize Lender, or any other foreclosure sale purchaser, as tenant under the Lease. If Lender becomes the tenant under the Lease, (a) Lender shall have the same rights as Tenant with respect to any unexercised extension options, rights of first refusal, rights of first offer or purchase options contained in the Lease.; (b) Lender shall be personally liable for the obligations of Tenant under the Lease only for the period of time that Lender remains tenant thereunder; and (c) Lender shall have the right to assign the Lease to. a nominee or assignee
of Lender, subject to Landlord's approval, which shall not be uneasonably withheld or delayed, without Lender

assuming the obligations of Tenant under the Lease. If Lender subsequently assigns or transfers its interest under
the Lease after acquiring the sae by foreclosure or deed in lieu of foreclosure, and in connection with any such
assignment or transfer Lender takes back a mortgage or deed of trst encumbering such leasehold interest to secure a portion of the purchase price given to Lender for such assignment or transfer, then such mortgage or deed of trst shaU be considered a Leasehold Mortgage as contemplated under this Section 10 and any other provisions of this

Consent intended for the benefit of Lender. .
(a)

Lender

11. Rights in Personal Propert. Landlord acknowledges and agrees that all Personal Propert of

Tenant, whether or not affxed to the Propert, and notwithstanding any Lease provisions to the contrary, shall
remain personal propert and shall not be subject to any lien, claim or other interest of

to the installation of the Personal Propert on the Propert, agrees that Lender may do to and with the Personal Property any or all of the acts below enumerated, and grants Lender a right, as set forth below, to enter into possession of the Propert to do any or all of the following (the "Pennitted Actions") with respect to the Personal Propert: assemble, have appraised, display, sever, remove, maintain, prepare for sale or leas, advertise, inspect,
repair, lease, trasfer, and/or sell (at public auction or private sale). Lender shall have the right to enter into and to

Landlord. Landlord consents

occupy the Propert, for the purposes described above, for an actual occupancy period of up to one hundred twenty Jays (at Lender's discretion), provided Lender has cured any monetary defaults under the Lease as provided above
in Sections 7(a) and 8(b), following the later of: (a) Landlord placing Lender in possession of

abandonment or surrender of the Propert by Tenant, whether voluntary or involuntary. Landlord shall be
reimbursed for, or Lender shall cause to be repaired, at its expense, aii physical damage to the Propert caused by
Lhe Pennittcd Actions subject only to Lender's agreements with Tenant.

the Property; and (b)

the rem?val of the Personal Propert. Landlord acknowledges that at any time prior to Ladlord placing Lender in possession of the Propert, or abandonment of or surrender of the Propert by Tenant, Lender may take any or all of

12. Notices. Any notice required or pennitted to be given to any party under this Agreement shall be in writing and shall be given by (i) facsimile transmission, (ii) certified mail return receipt requested, or (iii) hand delivery. addressed as follows:

X2'¡6t Cons~nt to I:m;uinbranc" ofTenants Intcrest vI .doc

3

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\ (0
(a)
If

to Landlord:

A V A Global Enterprise, LLC, 631 San Felipe Rd.

Hollster, California 95023 Attention: Nazim M.N. Faquiryan
Toan To Tao To

Sayed M.N. Faquiryan
Facsimile No.:

(b)

If

to Lender:

BP West Coast Products LLC
4 Centerpointe Drive
La Palma, California 90623- 1066

Attention: Site Acquisition Manager Facsimile No.: 714-670-5178

Such notices shall be deemed received (i) upon delivery, if delivered by hand or by facsimile transmission (with confirmation of receipt), or (ii) three days after having been deposited in the U.S. mail, postage prepaid, if mailed. Any par may change its address for notice hereunder by notice given as provided above.
13. Counterparts. This Consent may be executed in any number of counterpart, each of which shall

constitute one original, but all such counterparts taken together shall constitute one and the same instrument.
14.

Termination of this Consent. This Consent shall automatii;ally terminate upon full repayment of

L¡(!11

15. Successors and Assigns. This Consent shall inure to the benefit of and be binding on the parties
hereto and their respective successors and assigns.

16. Governing Law. This Consent shall be governed by and construed in accordance with the laws of
the Slate of

California.

17. Entire Agreement. This Consent contains all of the agreements and understandings between the
partjes with respect to the subject matter of this Consent. All prior oral or written promises, representations,

agreements or understandings, express or implied, in connection with the subject matter of this Consent are

expressly merged herein and superseded hereby. In ,the event of any conflict between the terms and conditions
contained in this Consent and the tenns and conditions contained in the Lease, the terms and conditions contained in this Consent shall prevaiL.
i 8. Attorney's Fees. If any lawsuit, reference or arbitration is commenced which arises out of or

relates to this Consent, the prevajjng part shall be entitled to recover ITom the other part such sums as the court, referee or arbitrator may adjudge to be reasonable attorneys' fees in such action, in addition to costs and expenses
otherwise allowed by law.
IN WITNESS WHEREOF, the parties have executed this Consent as of

the date first written above.

SIGNATURES ON FOLLOWING PAGE

4

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\1
"LANDLORD"
A V A GLOBAL ENTERPRISE. LLC.,

a California corporation

ßy:
Sayed M.N. Faquiryan
By: ------ -- -

Toan To

Ry:

_.,

Tao To

By: ----Sayed M.N. Faquiryan

AGREED AND ACCEPTED BY:

"TENANT':
STTN ENTERPRISE, INC.,

a California corporation

Hy: Nazim S.M. Faquiryan President/CEO

Ry: ---

Sayed M.N. Faquiryan Secretary and Treasurer

"LENDER"
BP WEST COAST PRODUCTS LLC,

a Delaware limited liability company

5
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Landlord's Lender's Agreement

'" \ 0. a \\ t CA ("Landlord's Lender"), together
with all its successors and assigns and together with any par which obtains title to the Real Propert by means of a foreclosure, a deed in lieu of foreclosure, or otherwise, hereby agree that upon obtaining title to the Real Propert
that (i) any and all of such paries obtaining title to the Real Propert shall be bound by all of

the tenns, covenants,

conditions and agreements contained in this Consent as if such par were the Landlord hereunder and (ii) upon Lender or a successor or assign of Lender obtaining Tenant's interest in the Lease, by means of foreclosure, an assignment by Tenant in lieu of foreclosure, a new lease being entered into, or otherwise, that Lender and Lenders' participants and their successors and assigns shall succeed to the Tenant's interest in that certin Subordination, Non-Disturbance and Attornment Agreement executed between Landlord's Lender and Tenant contemporaneously herewith as if Lender were the original tenant under such Agreement. The tenns of such Subordination, NonDisturbance and Attornment Agreement shall not be amended or modified without Lender's prior written consent.
"LANDLORD'S LENDER"

'r\Ú\
By:

Its:

(Printed Name and Title)

ie.l(, i Cons.:niio Em:umhrancc ofTenann's Interest v I.doc

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(i

II
ACKNOWLEDGMENT
State of California
County

)
)

of

)

on. ~t)'1 , before me, J?1l "C, ~ rl' 1T1) I0T1 ~6uC. personally appeared

--- ~ Cllr . , personally known to me (er !,f6o/eEi te'le
~-iJ:e ~Qsi& Qf ~::tiii:::"tery e. id"inÆ) to be the person~ whose namet1 is¥ subscribed to the within instrment
and acknowledged to me that he/Sb/thf executed the same in hisnM/t1'ir authorized capacity(~, and that by
his~tI~r signatuetí) on the instrument the person~, or the entity upon behalf of

which the person(s) acted,

~xecuted the instrument.

WITNESS my hand and offcial seaL.

~- c. -. \'
. ture)

~ PRIL SMITH l""~-~--"'~""~~~ l -,, ~. -Nolary Couty £ Or Pu - CaUtomi f - - ~:~:.~ee_~i~2~
- Comls II 1537534 t

ACKNOWLEDGMENT
SLale nfCalifornia

)

County

of

) )

On --. . - ---' before me, -_. , personally appeared
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by ii is/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seaL.

. - --- , personally known to me (or proved to me

(Signature)

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EXHIBIT "A"
Legal Description or Real Property

?D

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE ClTY OF HOLLISTER, COUNTY Of SAN BENITO, STATE OF CALIFORNIA AND is DESCRIBED AS FOLLOWS:
ALL THAT REAL AND CERTAIN PROPERTY LOCATED IN THE CITY OF HOLLISTER, COUNTY OF SAN

BENITO, STATE OF CALIFORNIA, BEING A PORTION OF PARCEL I AS SAID PARCEL is SHOWN
UPON THE PARCEL MAP RECORDED IN BOOK 7 OF PARCEL MAPS AT PAGE 59, OFFICIAL RECORDS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWESTERLY CORNER OF PARCEL I AS SHOWN UPON SAID MAP;

THENCE N 2 DEGREES 06 MINUTES 20 SECONDS E, 183.48 FEET ALONG THE RIGHT OF WAY OF SAN FEU PE ROAD (STATE HWY. i 56) TO THE TRUE POINT OF BEGINNING;

THENCE FROM SAID TRUE POINT OF BEGINNING, CONTINUING ALONG SAID RIGHT OF WAY, N 2 DEGREES 06 MINUTES 20 SECONDS E, 176.48;
THENCE NORTHEASTERLY ON THE ARC OF A TANGENT CURVE TO THE RIGHT CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 20.00 FEET, THROUGH A CENTRAL ANGLE OF 90 DEGREES 28 MINUTES 10 SECONDS, FOR AN ARC LENGTH OF 31.8 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF CHAPPELL ROAD.

THENCE EASTERLY ALONG SAID RIGHT OF WAY LINE, S 87 DEGREES 25 MINUTES 30 SECONDS E
146.84 FEET:

THENCE LEA VING SAID LINE, S 2 DEGREES 06 MINUTES 20 SECONDS W, 222.81 FEET;

THENCE N 87 DEGREES 25 MINUTES 11 SECONDS W, 90.03 FEET; THENCE N 79 DEGREES 10 MINUTES 29 SECONDS W, 60.93 FEET;

THENCE N 41 DEGREES 33 MINUTES 35 SECONDS W, 24.26 FEET TO THE TRUE POINT OF
BEGINNING.

APN: 051-100-040

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;;\
EXHIBIT "8"
Existing Mortgages and Deeds of

Trust Encumbering the Real Property

One Only:
Type:
Amount:
Firm:

Blanket Encumbrance

$1,925,000.00
Omni Financial

Recordcd:
Doc No.:

3AVAI04

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EXHIBIT "c"

r;yt

Modifications to Lease

None

10
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