Free Declaration in Support - District Court of California - California

Case 5:07-cv-04808-JF

Document 46-4

Filed 07/03/2008

Page 1 of 80

EXHIBIT
D

137

Case 5:07-cv-04808-JF

Document 46-4

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Page 2 of 80

\
BP West Coast Products LLC ~~

Guarantee Agreement

Individual
Facility: 82461

The undersigned Saved Faquirvan and (spouse, if married), intending to be
legally bound hereby and in consideration of BP West Coast Products LLC, organized in Delaware (hereinafter

called "BPWCP") advancing .credit to STTN Enterprises, Inc. (hereinafter called "Debtor"), and also in consideration of BPWCP, at its sole discretion, (a) agreeing to any additional credi~ at any time hereafter to Debtor
for petroleum products and other merchandise, or (b) to extend credit, advance money, or defer time for payment of any money due or to become due under contract or obligation arising from. any lease or loan, or (c) to extend credit in any other manner to, or at the request or for the account of Debtor, either with or without security (all such
" ,

liabilty and obligation of Debtor to BPWCP now or hereafter existing being hereinafter referred to as
"Obligations"), do hereby jointly and severally guarantee and agree to .pay to BPWCP, upon demand, all of the Obligations together with interest thereon, and any and all expenses, including but not limited to, reasonable

attorneys' fees which may be incurred by BPWCP in collecting all or any of the Obligations and/or enforcing any rights hereunder; it being further understood and agreed that the liabiliy hereunder of the undersigned shall be

unlimited as to the amount of Obligations covered by this Guaranty. The undersigned waive any right to require BPWCP to (a) proceed against Debtor or any other part; (b) proceed against or exhaust any security held from Debtor; or (c) pursue any other remedy in BPWCP's power whatsoever. The undersigned waive any defense based on Or arising out of any defense of Debtor other than payment in full of the indebtedness, including wiUUout limitation any defense based on or arising out of the disabilty of Debtor, or the
unenforceabilty of the indebtedness or any part thereof from any cause, or UUe cessation from any cause of the

liabiliy of Debtor other than payment in full of the indebtedness. BPWCP may, at its election, foreclose on any
security held by BPWCP by one or more judicial or nonjudicial sales whether or not every aspect of any such sale

is commercially reasonable, or exercise any other right or remedy BPWCP may have against Debtor, or any security, without affecting or impairing in any way the liability of the undersigned except to the extent the indebtedness has been paid. The undersigned waive any defense arising out of any such election by BPWCP,
even though such election operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of the undersigned against Debtor or any security. Until all indebtedness of Debtor to BPWCP shall have been paid in full, even though such indebtedness is in excess of the undersigned's liabilty hereunder, the undersigned shall have no right of subrogation and waive any right to enforce any remedy which BPWCP now has or may hereafter have against Debtor, and waive any benefit of, or any right to participate in any security now or hereafter held by BPWCP.

If this Guaranty is executed by two or more parties, they shall be severally liable hereunder, and the word
"undersigned" wherever used herein shall be construed to refer to each of such parties separated, all in the same
manner and with UUe same effect as if each of them had signed separate instruments; and in any such case this

Guaranty shall not be revoked or impaired as to anyone or more of such parties by the death of any of the others or by the revocation or release of any liabilities hereunder of anyone or more of such other parties.
Executed at

, this -2 - day of -Jj,

'i .

Witness
Residence of Guarantor (street, city, state, zip code)

~~ ~
Guarantor - Spouse
, ¿ -- Y7,l-

, 20 1l.

Guarantor - Sayed Faquiryan

,':

Witness
Residence of Guarantor (street, city, state, zip code)

BP 02879

. Subscribed and sworn to before me this

Z ¿;M day of

'-

, 200 ¿,

Lz~~~ 2

~

MINA FAQUIRAN

otary Public

Notar PubUc - CoIlo
SonIa Clora Courty (

J

M' Co. EJesJu 13, 2:

138

--..--------- J

Case 5:07-cv-04808-JF

Document 46-4

Filed 07/03/2008

Page 3 of 80

EXHIBIT
E

139

Case 5:07-cv-04808-JF

Document 46-4

Filed 07/03/2008

Page 4 of 80

08/ 10/2826

'13:.:f.

lil I 01'" '. ~NK

f'iI LP ¡ F PS ~J 15625982:377
I

I

t~O. 7S-S

DB:

~~~ ~ .:

I3P WESi COAST PROOUCT5, I.LC :\ IJrh,,')((.I:inittd li:ioiliry (tlnl(1::"~'

I ~ -.
bp
F:sdií1y .S2.m

~(Q~)'
I i i !

M~y 25, 200ó

81T ENTERPRiSES, INC.

i j ¡: K MiJpiw Btvè. #1 ó06
Milpi~ CA ~5035

Arn
R.¡:

Ni.im i:aquiryan and Sâyed Faquiry

631 San Felipe Rd., Hamstl!r, CA 95 3S (tlle ~Real Properry'ï
~'\ Naaim ""d S9Y~;
I

BP WEST :O"_ST P~~DUCTS LLC, a Ddaj'--e liii\ted lia.billry compw)' ("BPWCP"), is pltasb.iO consìd.r ihè

requ(:si of ~TT EN l¡;RPRlSES, INC.: & ~hfOmt~ CorpClr.110n ("Borrower"), for n loan (ile "Loan") in iht
!!ooum of s.75,000.00 (the "M:iximutl Loan 'úount") to Û¡¡a!c~ me rtir.dol.g iicd (tfuisbiog of ibe A_ReObràndcd liiail (Do(or fuel s¡¡tiOI\ ~d am/pm Mini Marl:i: selling bèer and wine (conccveJy, ihe ;oBusini;SS")
¡(¡cafed a¡ Ûlè P=l Proptii, o'Od rel:.ed Îm1ìrovt:mc.itS aod persoiial property (lne "I.pro\leinenLS") owntd by

Borrower and s;IIJaied cr., "r uSlÕd in conoecûo with, we Real Propert (coll:!ctii'e)y. tht "Propcrc'~),
A summar of 1h~ tcmms of the 1.0;1 is coo ine: in EJ:Jiibii "A" ~ncloscd wiÙl ild in~r¡Or=i. ¡mo this tctiiOr
Çcropli:tc i.s of the Loan ",ill be se:( fo ii B'PWCP's fOTtIl of doci:mc--:: i:¡¡d ,,"'cnlS \0 b~ signe: by

Borrowtr, which wil c.videnc" and secue the o~i\.

BPWCP's obligJtion to mak.e arrd fund Ülc an i~ (.l)inger.t UpOIt (i) BPWCP's ~ectipt, rc";cw, i.d appro''l of
the items listed on Exhibit "B" enclosed wit~ and mõ.~ 6 part of this \c:iie;, (ii) !he saiisiaccion of ibe c;:nditions i) !ÍSed 011 E,xhjb¡t "8," and (if BPWCP's:
Ie
Rt'ccipl of BOITowcr' ~ \0

applic!lion aad verfica(ion of the informiition conl2ined ÍJ

Borrwe' ~ spplicaron;
b.
Approval of

an apprain! of "c ttroperr prepar~d by an. appraiscr~pTo,,(:d toy BPWCP;

c.

Rev¡,,\\ ~!td ~ppro"ai of th fmandal conditioii of BOrTowur, condition of title. suff;:iency or nêt
cah now r'fOm UUe Businc:s ¡CI cover i!i:b¡ sèrvicc, ~nd Dccnom;" f",.~milit)' of (he. BusintSs;

d. ~ip~ r~\oi~w, ~nd approJI ofadáitiooal documents ~!iè information requiT~d by B?WCP; and

. c. Finbl app~o~1 of iht Loan Y BPWCP's ~Pl'roPriôtt cr~d!t c~ce1õ o( r;Of!,mi.oets. . - .

B()ITOWt:T shaD ttiy an of BPWCP's coSt In roiitC",\on with ibc Lenii. I!chiding, bul not IImiied ¡o, crc:Jt rcpons,
title L'1surncc pr~r:iums, escrow fi:es, lcg~' I~~, tecordiJlg ri;~, the \or. processing fee or S i 0,000 aJd 0i.11:1

c'Xj,cnstS. BPWCP \\;11 notify BOITOWCi or il ÜO~! ap!'roval 0; the Loan by issuing loan docUfcn:. ~oiniinillg ill~

(trtm 3nd condi¡jolls or- rhe Loaa :i finally "Pro"~d.
I

TLmc i~ 0f ojic i:;~;f\CC in con:,ec¡ion ,.vithiany m&r:~r disC\ls~t: i.~ Liis Icttr- ir you ag¡~è to uu" ¡trms ~ltd

cond;:ioo~ c.oniÕ;n",d in thi~ .I~ttc.r~ pi.=~c ,L:41ccc y;)üü ¡,(.::ow!cdgmeii,. ~:\d :¡gr~mcni:DY SignL'1g :nd,òariJ!(h~ c.:ò;:o:cè co;:y t,r L!¡¡; leiii:r, inllõó.llf~ :.x.,'¡ib,t: "..." aad "B' ; IUd rennmg rhc.rn 10 me. 'i OU may rcl2i1 me ons,nEI

of this I~U;( fo; your files. Ii ),QI! do no~ si5~ ,,ryci r.!Um ¡his Itl1e ,-~,j ¡he l1itiaj~d. Exhibill co -rne Of) O~. ocfv~ h..:y, 10, 200ó, or yo~ do rlOI proyid~ ddê i¡ems Fr ",¡;sfy it::: condiiiom IiSled Oil 'Ehib¡i "B" on or bâcc~ ¡he lime

10

3~.,\7d

d,è:S' 3SvDli:CCH :D:;'U30

I.
140

LL£0:::S£Z9£

Î7 :¿: T

L 08;: /~,Q,I ¡,e.

S 000 16

Case 5:07-cv-04808-JF

Document 46-4

Filed 07/03/2008

Page 5 of 80

123/10/2006

13: 1:0

U:'llO""-')¡,I( 111L?ITP.S.; ::SÓ25980377

~!O . 785

(;02

sm Eh'T£RP'iJSES, n-:C.
May 15, 2ÛCó

Pagd
d!!w\in~ .0: fc.'1 in Exhibi¡ "3", (his let'.: ivil! be:cO!lt \'oiò. and BPWC? wi\ hayc no fu~cr obiigntions und~r
th is I erer.
linal!y, pi~e (\ie iJl~¡ BPWCP i,: r~qu¡rcd by \aw te rcpoC' the; åi.mbulÏol~ oÎ funds to tì Internl Revenut

$clcc. You sbould ¡ccl~ the advice ar:u -aCCOllUim or I: õ:to;n~y.(c¡;rdiQg ùie pa~~ib\t iz.ccr.sequ..:cçs oírhis

ir..~i:ùn btfore Fau sign ih~ LaM documents. If you have aa:y qu::siiofi regarding (his len"r, pless con~c.r Kcn Wick!:hun at ¡:3 1:6'2-9 \ 30.

Yr: i:ly yOll').

~ Itt Ú7
Jf!l!car¡ ()
Rtg.ioiial "Pomolio M~gp
JMClpjs
co:

Ken Wicki:rii¡¡,

Enclosures

Ac:noiyli;g~me::: oi Receipt of tt.n2r: .tc;J

~

,2006.

STr\ ENTERPRISES, i.-.c.,
A CCjjomia ccrpor;iion

B).:~t-XPrie Nile: Na:m Fßoo\Ï¡Y';n
Prini"d 1';'11:: CEO and ?rcside!'\
A

~)':

~~/

PrLiæd N~cne: ~:wcd tilouiri"l"n .

Print, Tj¡I:: S~crd:r\" and Tre~'ur

-;'-1

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_1':...1::', ::C'IHi:.1 ;.i-ii..i

\.t"',ì.: i -:rr

l l t'CI~hc;7.1:l':

t:r :::. T.

/i;I::?'/i'¡;IIt'C1 S 00017

141

Case 5:07-cv-04808-JF

Document 46-4

Filed 07/03/2008

Page 6 of 80

Be/liZ/20Gb

lJ:4Ø

UN! G~I-' '.~ii~ ~! I LP I TA:. ", t 56Z..5983377

N::. 785

D03

STT ENER.PRISES, INC.
May 25. 7.006

Page j
A""~d La Lhis .3~' day at /L//tf

~ ~~ -' V

,200G.

STIN ENTERJRlSES, L"IC., A Cülifomi;¡"c.rpor.¡Íon .

BY:' --~

-+q

\

Prinieè "Naml: Nwm Faauim.
himtd TIIIt: ÇÇO ~iJ Pi~çìde"i

Bu' ~/ .z.. '?rint~d N¡;~: Sav.:d rÐlJU\\"С\

" . .;

-1

f'::icd T¡tle; S~crc:nrv :and Tre~UJer

'.

8 39\7d

d::'0 3~Y';£'J..:;CJi.'! )I;) I .::J3J

LL((i8E.S:'j£

1:::. : Z. 1.

LEE¡:~/i;øir.££s 00018

142

Case 5:07-cv-04808-JF

Document 46-4

Filed 07/03/2008

Page 7 of 80

B!3/1 B/208S

13; -'(,

UN i Ci¡, .::I,K M I LP ITAS .; 15ë25580:\?7

I'c. 785

(;0.1

--

./ ,/

--

S1Tt~ nm::R.J'Rls::S, r!'e.
M:..y 25. 2006
('~g~ A

EXHTBIT "An

StJMA.Y OF 1.O,\1\ TERM~
(Subjec~ to LD~n úocumentS ant! FinaJ Lo'aii !\pproval)
Mô.imunn Lo.." A.ioum: $~ 75 ,oeo.oo

B¡¡i Lan Arnourt: 5320,000.00

(1:00,000.00 fc.r IO~f1 aatribu~b\e 10 ga!olirre scrva 51:ion)
(S i:O,OOO.OO for lo!\ aroibuubk to ôJlpm ~..ni Mnrhi)

Addition..1 Loin A.mounts:
Addi!ionsJ &iids:

If die å:it~ (the ':BlJsiness Commencemènt Dôt~") upon which Bomwcr cort?lcies coQSction of the
Improveri:iii: and Op~5 iht. Business Iwhich sll::U bc de,Ünea ~ theo compltticn arid o~rriig fo: bwÚ!ci$ of il

rmi(crial compone.nts of ile g'as and storl! offcrg i: s~t fort mOot ¡:a.iiculii)y in ,he doçu:cntS and agrements

(collevdy, the "Fr:--cbise Agrcccci:nts"j (0 b~ è-.ecUtØ by Eorrower in co!L'ecrion whh ~cquisition of a frduse
und2\ t:i:: FlGchis:: A;toemerr-r1 oecur¡ wi¡/in tbe ciroe periods proviåêd below, iid provid::d Borrowe.r is nor weo

ir dffaul( under w)' oI rh" tc:- iid ec::àidoT1 of ih.: \.an Ag;c"'in~n(, Ù'an D(\~f:~, or F'rachi~
A;:I~,l3e¡¡:~, BPWCP iry dt.ct, blS shaH f10~ be obligatcd tD disbure. ,ddicion31 funòs (" Addidonal Fund~") to or
or. behalf or Borrowc:r :. follovr:

IfBwùùc~s Coin'TeQcemenr Om occurs by tj)e Illt day oi the fO\1..'i.eenfu (\4") monUJ follou.ing BOrIower s e:oc.w¡iOn of ù\i$ Condition!!\ Commitmen.t LdlZr: 125% of Bê.
Lo::n AmowwL.

Li Biiiness COr;,mcemcrrC D~t~ oocus betWeen the firs rly Oi ihe fLftCC~!h (15"') monib fol\owing Borrowcr' s ~t.C\L'ion of this Corrdidorr&l Commi=t L:, and the.

\a! day of the ~e.¡¡t~::fu ()7"') month foiiowii~ BOITowds cxecution or thi!
Conditional Commicment ~tcer: I 15% ofBi1~C Loan AmouiiL
Addirioll.al F::d£ sh!!U be usó:d by 'BotTowe. soi::!)' for reimbursement of cosis 2!d ex.pendirures !!ociiiit;

with improv~inents to ¡,ndJClr r\ln;hasß~ of cQuipinwt for use. at th~ Buslnê~2, iind for !I OU1i: us or pwp~ whatsever. BOrTowe! shall provide (l BPWCP rtzorric do.UJenULtìon evjótncing sucl co,,ú a.--d c),:'Pendi(Ure~
as ~ condition to BPWCP's disburement of tbe Add.itiorr~1 Funds t() BOTTOW~.

R:?fre.n t! Rèèurbisn~:
If ~ of Ùle I ¡'~ anniv(:,"ar DI d1e Ers\ disbUISNDM! und.o: th~ L.03l, provi¿~d Borrwcr í5 not i~en in

dtf:uh \Oder any of the: IcrmS and conditions ori:e Lo:u Agrci:mc=l$ L,a~ Documc;nl5. or FrdIchise: Ag¡emcn'., BPWCP. ræy eject. b\.~ i.''a!1 oat .be oblìga!cd to di$b\!se up to Sevc:(icy-Five Thou~r.d ~nd O~i\ 00 DoUar ply ",1m B?WCP'.s (S75,Ooo) (the "?-t££h &. Refurbish FuClcl") to or on bel.)~lf oi BurroWC1 i. be used for n.on-~Í1~¡ ch'i:.:iges io .
me I.provemcnLs, such ö, updarirrg i:d l'trofming ô1e ;nieriùr of the Improvem;ni; \0 corn

thcn-Ctncn1 döigg and I.youl for itS ::plr, miDi marers: including, but üol liiiÙteè 10. ntll.. p;int, Doane:;, :iY-.lge, iixc-..es. e.ipineii,. and t!e like (col!ec~ivel)'. the "RdIi:sb
& ~.cfcrbish")- IDe R-er.e:sh &. Reeurish Fundi :.r.~11 be u.cd zoJcI)' to ffl\9nce the CDS: of the Refresh & Refu;sh..
UoT)d fOT no c~.r u¡e o~ pU1DjG Whët!SOèYCrImtreSt Rinc:: 5.00% per yeiir L;ubj.cl:c change. pí¡OT ~u Ú1: c,io$in:; ofUUe Lo¡"n).

PÎ.;p::YiiIc:n~ f ¿;£: r~cr.~.

As;umption: Not pemiir..;1

~r.--

-=li'i.'.~

A~'I :¡C''¡Lì 1 --ni'.) ):~J T i- J "In

¿!.:~i::::E.S;:3S

P£ :':1

LBO: /68/ !:0S 00019

143

Case 5:07-cv-04808-JF

Document 46-4

Filed 07/03/2008

Page 8 of 80

08/1£1/2006

13: '10

'JI';¡O",-- ~11'1J': I'I! LP! î;:S .. i 56?5~;:;;;C7?

hG.785

De5

,
.0"

SITI' ENTEPJ'iUSES. fNC

,.

May 25, 200ó
P:"gc. 5

Teml Twenty (2Ü) yea
hmortizz,ion Schè:duk: Il2úth of tot LaM amoum c.!!prLs~ò of the Biie Lo!1 Ainou::l i.d ,od1monRI Funds win

be pay¡blc on e31n :,nniv~t'aiy oi ttlc flJI day of i!\t first com?Ic.r. month ÙJ whicb tho BUS:;1e:~ i$ opt:
far biiiiies:. .

Nor1!dundable Loan Proces~ina Fe~: S\ 0,000
A Daed or Tr1JSl v.'Ítl Assjg¡mòf\ of R~nts. See:l!i:y Agr~m~n\ ¡¡è fixiie FiJÏ¡g ~c;c.rè~d !! ¡he Offici,,: R=rès of tht county wher the RlÒal hopi:)' is siroaw!, and ~!J,"ul1b~ring me. Real Prop.? b ~ litr. position apprm:ed by B!'WCP as BPWCP, It! it sole di~creiion, dctwniiits,

Tbt LDS1) Agrccmc::l win include provisions n:quirg: I) that c:onstrC1jOß of ihe llpro"ei:~~ muSt c:o=en~ nO later th!I.!\ ¡he \a.q day of ¡h~ c:ightt;;nth (12"' monlh following BOIVlcr'~ e):c=utiOQ of the Frmchis Agrccmco¡s; 2) Ù\.¡ me Bu5in~~ Commenç~(DenT DaLe: !lU51 oc 01\ or before ¡he: hsl Lry cf the ¡w,ory(our (24d~ mood! (allowing Borrowi:" S cX~~UUOD of the F~~chi~ A¡¡~menG; è!d (3) U1:: if 11,,

Bt!int5 Corr~nccl!o!t Da!C do,s not OCU! ~ thc \~t (jay ofÚ\c TW(:ll\'-fourt (24"' montl rol1o",'¡r.g
Borrow~r's e)~cutior. of tlle F,4!chisc A.g,~mttli., BPWCP may, ", ilS option, de~j:\~ d-~ Loal' to \) ,11
oicr"L!1t and imm~di:1t~ly dii~ and p~y.b1~, ~¿ ¡e.iwinete ùùe Loan ¡,grecmcl1!S.

A DeC-! FïJ'aacir.~ SQ\omcct lr. ~ li,,n position approvt. by BPWCP 11 ßP~;'CP, in ilS sc.11! c!iscri:cn, dè~ruin~,
lidi wiib the S~c;e."I)' of Staia of the Slat: of Borrower's ini;rpol":ion or org-..niz!Ìon (or. jf Bmi,.",er is

an indívid\J¡;J, in the sute where Borrower'~ pr.DGip~ resid/;ch i~ ioc~Ied), wilh resp ¡-; Lbc p=ii"l

prop"-iT' ofBorrou'~i", including bUt aCt limit~d!D, ¡nchînc)), eqiÚpmtni, rU!Tli¡u,,, fL.\.-r-e, ¡¡d in".ntory nOW or in the futue s:ìrua!! Or!, or usd in COQDccnccn wi¡Ì\ me Busin::s f1, me. Real Pro~'.

all prirrcipëls in
P=nal Guatic: acccpiiJo to BPWCP, inc\udirg bul no¡ limiied ëo p~rso!Ji1i ¡;u,rar\ti~s from

Bontwcr and SpoiltS or ?rin~ipr.\s in. Borrower.
ÁJu-,,¡ g'..¡;:ò g'..olúúe vOIl1me: 2,800,000 gûl\ons.

,A-nu¡J g=lQ"ó am/pm Mini Ivlarrc¡ Siles: $960,QDO.OO.

Loan m~ ~ fully funded or. or bâore: the Jut d1!Y of the -twenty-fourth (2A") monÙ, folJcci;'Îrg, 8orT)wd; l;):e~uLÏon of the Fniiichise Agrumems.
Othtr ti:S:

NONE

-/
BPWCP's . i~ìaj$

tJ ¡:

Borrower's i"itials

~~

Sß 3:)t'd

dd': 3!è,,,~I.ldCCH )01 d.l3i1

L¿:::EE8E.£Z'?S

p~:¿ t

L(;£o(;/58/"0

S 00020

144

Case 5:07-cv-04808-JF

Document 46-4

Filed 07/03/2008

Page 9 of 80

_~~8/10/20Ø6

13:40

UN ¡ 01'1 .n.'I.1K M i LP ! 1 AS "' 15625980377

~O. ?8S

(;0G

./
..'

.-

SITr! EN£RPRrSES, fNC.
May ;;5, ::OQó
Pige 6

EXHU3rT "13"

fT'EMS REOumO íO CQMPLE.íE. LOAN A1''..CA TION AND COND1T0;-S 'f0 B'£ S;.TfSFIED ßEFORg LOAN FU1NC

ITEMS REOUf£D :\ T THF, TIME THE LETTER iS SIGNr.D BY BORROWER A!'D RETUR.t",E'D íO

BPwcr:
i.
2.
BOTTOWI: mUSI sign B pWCl''¡ Conttcl De:\~r CCa5vlinç Agr~~;nent for a ierr or !:ent;. (2.0) )'::~..,

BOrIi)wcr mIL, ~igg ampm Iviini Muhi Agrccment foi ii ¡,rm of tw..nry (20) )JI~?J'S ::d ::ay Lie tnitiaJ Fr.cruse Fe:.

G RRO'í\'F,R'S SIG~A 11£ O¡;
1'BMS RE umED ON OR BEFORF. 'lIE iso"l DAY FOLLDW
TIfF. ¡;AANCHI$E AGREEMENTS J.E.C:CRRE.D !1 ItEMS 1 A
3.
Crcdjr rcporr(S) of Borrower, all "pticipa\~ in Borr'JJi:, all spouseS of principiJ.s UU Borrw.:r, ;;d all

1 ABOVE:

!! ..n.iors
4.
5. 6.
BPWCP's ioan appliC!!ion.

Borrw:r's oig¡TIiztii¡nal doç;\le-ts.
BOlTowds j:lp~yer ¡d",ntiiic£l;orr (w:nbtr.
¡",:imie t2 re'~1S of

î,
s.
~,

BO!Tower, all pTbdpals in 8or:-wer, all ssouscs of princip~l. ir. Bon-ower, wd ?Il

gUJlraai.rs.

Ban and ÍIv~s\Tie.iil sroe.menH of Bo¡¡owtr. (111 pric.pah in 'Borrowe.r, en SPO\l$:,\ of princ.ip~ls iii Borrwer, and sU gU!\.:IItti;.
Profr ¡¡nd loes S1rtTtimis for ¡je propo~ed B.)sintS~. StrCCure and Use Prooe;d( Form.

10.

i i.
12.

Se.nior Lien Holde.T's INn commimmeeL Iclter.

Writen aothorition for BPWCl to coni.C\ ;;d oorain informaton from Senior Li~n Holder.
Either:

I::.

a. '
b,

2 çercned copy of 2 f~cordd gram d::::d showing BOrTowi:r's fee interet in tÌ,e Rd P~opc; or
a cerrfied eopy of ~i:.~ ~scrow inslTc,ion£ for BOTTowcr's purc,h~e of U1i: fee ¡nteres¡ iD Lhè

Ri:\ Pro¡:è!''~ or
c.
a si5fct! gröund \~ bctWt::r. llc owoer of \he. Reel Pmp::rr e:¿ BQrrower, ccnGiniTJf,

mvr1i;a¡:ec prow:riOTl prov\siol\s e.-::i:l.b!e \0 BPWCP and i~ cot:nsd, 0: 31Icm,-civc1y. a si£led
G,2J¿mcrH lD !lie ground It~~ accc?wble ro BPWCP ard ItS counsd tsc\isp in:; c:\'b

uuol1g~g~~ pro£êciioilS 'm favor of SPWCf',
i 4.

;, p!'¿j;r...",:::-/ :i~!: ~""0~ !rm ~ BP\'CF.~pproved Ü¡lt c.ompan)' for thò R~.\ propcr.y ;;rrc G complere. !~g:Q\¿ cc'p:, a! ~3ch ,jOC\lt!:¡¡r snown a. ~n òxi:prion on th~ preEminai-y rid" n:¡xm.
I\r, AL T ¡. S\.\'cy of ~h" Rocc.1 Propc:~ c:rufied to rn" ß?WCP-i:ppro\.td ¡'.tI~ CDII1,?"ßY,

15.

9IJ

39t:o

.;::: 3SS,¡:~)linl'l )1::J1 èJ130J

LL~D::E.ç.Z:9S

t:S :;:, I

¿,88U6Ø/P'j
S 00021

145

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0f:V10/2B0G

13:-10

UI,II O~- '''1-1: riI LP IT AS .. ,56259:::8377

NO. '7S5

Dlj7

s¡- Ð~TE.RPRiSES, fNC.

M~y 25. :W06
Page 7

i ó.

Environmental repom ard S1diò.. en.bling p.PWCP (0 dct,¡rmine ihi ¡j~ Pro~ IS tr t:!r
cont!ination by tOxic or be.Tdous S\~b5i.nc=s, ~AccPt ¡hose o~cuung in tht r.orma: coii¡-se oì úú"

BU5in~~s.

17.

BOITowcr shall obcain ßPWCP's prior ~pprù\'al for c;nth 2rchi\~~t .and COn~ulii\ to i:-. rc(.incå by
BOlTowe! In connXGoii will the pemmi¡¡ini: and consi:ciion of ú1è Real ?ropony and improveir~nts, both
with rf:~cll~ Ibe wmp"tency, reti~'oilicy fu1d so\vancy'oftht architt.ci or consuJr..¡ aaci ~l!: "T.h r*c:

10 !he ters oi the retention agreeeIll. . I ~.

An appruso report by an BPWCP-¡¡provcd apprai.er conñ;ming ¡hat, ë:f¡cr con.idc!\g roc Lo,," ard ¡my
lhird par íinancin~ 5tCW"d. by Ù\Õ Pfopcrr, BorrOWè; wi\ hav~ G\ Icas 20"10 ;Q::iry in ¡hc rnpë, b:.d

on !he "iI wìU heu appraised value of the Propei,)' .

19.

BPWCP's approval ofsii: and sign p\;:s ror!he Rd Property and tht Improvements.

ITE:v!S RF.OUrRED ON OR B'£OR. LOA-N !iU"I\'Trl'IC:
20.

Copies of ~ii ¡;~\'~="nr.\ approvals, iicen~es, ~d pèi-mj0 required in c.n!èciiùo ""'Ît ttc cO¡¡Slaor:

uccd op:lÏOtl orrhe liiiprovem/:\. and iht '8c5intss (i(lc1udjn~ 'oUt not limited 10 "' .lcon"l ~1~ ppir
~cc::p¡¡b\e \0 BPWC?).

...i. -

A comr~im::nt from ~ BPWCP-approvcd \itle company (0 issue an ALTA lendei'~ policy o~.::itle :.~=ce insunrr:: tln the Deed of Tnnl trcuIT¡b¡,, me R~21 Propi:y in die posHio:: approved '0)' BPWCP, 9ubj~1 10 exce-tio''I$ app'oved in \ITiÜng by BP W CP .
fn5uranC2 nining BPWCP os ii addittnal i--isürcd ",ió ii .138 BFU enó(¡f"crnenl, it follows:
;L

:n.

"AJI risk" eiL~hy inurnce iruuriig 11e !mpfovem¡m1S '8¡;e.i!\( 10$5 "r ,hmegc by fir? or o¡her
caU¡¡!ty in an ~mO\\1 eairl io ¡ 00 percent of tbe rc;;l1Jcmcn¡ nluc of Ule improvementS, wÍ1 1. dw'1Jctibl! not e:xcëding $10.000 per o-;.;urrttice; and

b.

LiabiJty iO~UTce.

23.

Borrwer shall obtain BPWCP's prior ~P9ro,"al for tbe gehCT~J COOIJaclor 10 'ót rcl.:n:d by 8orrw~ ir
correcLion with (he pi:iitil1g. Ild COOS!:\\ctÏon of tbdteal Prpiòr1 and I mpro\'cnICnl., beth wit tê~

to ih~ compcienzy, re\i3biliiy and SOiv~!10Y of the gaa~rol comr.crùr bnd also wifn l(specc 10 ib~ reml of the ralbl!tio.n agtccmz11.
2:!.

Si:nior lien helder's wriui:!I approval of iht Deed of Tnist and UCC.1 Finsncirrg S\3Icmer,( s(:urirrg ihe
Loât. ina form acC~pt!!blt 10 BPWCP.

..-.p.).

TIie proje:i arch:!(;c! must sú'omit ¡: eompl~\= ~e, oC projot driiin¡;~ on compUter 71? disk in i ÎOrm
ilccepuu1e \0 BPWCI', (cumni!y Au!oC.0. version 14) upon completion of the (m;;rovcmenrs anó

is~u::ce of .all new:sary govemm~nral approvals.

:6.

OÜler:

NON"E

BPWCP';!¡;IS

eor:ow'~r s tr..n:.s

iJF .5¡~ ,..
LL,)j8E.S39S
l :z. i

LO

3SI'V d

-:dS 3::''';:Uôml :DI:130

LOO;:;Ø!Pri S 00022

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EXHIBIT
F

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Facility Number: 82461/SCDB65975. Customer Account Number: 0996439

LOAN AGREEl\NT
(am/pm Mini Market)

. Ths LOAN AGREEMENT (this "Agreement") is "made and entered into as of
F-e ia , 2007 by and between BP WEST COAST PRODUCTS LLÇ, a Delaware limted liabilty company (hereinafter referred to as "Lender"), and STT
ENTERPRISE, INC., a Californa corporation (the "Borrower").

Recitals
A. Borrower and Lender have entered into that certai ampm Mini Market

Agreement dated July i 1, 2006 (hereinafter referred to as the "CD Store Agreement") which

,.

provides the terms and conditions under which Borrower operates or will operate an arpm Min Market 10cated at 631 San Felipe Road, Hollster, CA 95035 (the "Store"). The Store comprises
a par of certain real propert owned by Borrower as more paricularly described in Exhibit "A"

to the Deed of Trut ("Propert"). Borrower and Lender have also entered into tht certain
Contract Dealer Gasoline Agreement dated July 11, 2006 which provides the Û~ims and

conditions under which Borrower operates or wi1 operate an ARCa gas01ine station on the
Propert (the "CD Agreement").

B. Lender and Borrower desire to provide for the terms and conditions upop. which Lender wi1 make avaiable to Borrower a loan to fud the costs associated with pre-approved
modifications and/or equipment and improvements to the Store.
Agreement

In consideration of the mutual promises contained herein, Lender and Borrower agree as follows:

DEFIITIONS:
Additional Loan Amounts: The term Additional Loan Amounts means any Additional
Funds which may be disbursed to Borrower or for Borröwer's benefit as defied and provided in
Section i .2.
Alterations: The term "Alterations" means alterations or improvements to the Store

which are permitted under ths Agreement.

Amortization Amount: The term "Amortzation Amount" is defied in Section 1.5.
Annual Guaranteed Amount:
The term "Anual Guaranteed Amount" means

$960,000.00.

82461 ampm Loan Agreement v1.doc

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Facility Number: 82461/SCDB65975 Customer Account Number: 0996439

Architect: The term "Architect" is defined in Section 2.l(h)'

Base Loan Amount:

The term "Base Loan Amount" is defied in Section 1.1.

. Business Open Date: The term "Business Open Date"- meaas the first day on which the
Store is open for business of all material components of the gas and store offerig as set fort

more paricularly in the CD Agreement and the CD Store Agreement, as determed by Lender.

CD Store Agreement: The term "CD Store Agreement" is defied in Recital A above.

Tru in the OffciaJ Records of

Closing Date: The term "Closing Date" means the date of recordation of the Deed of the county in which the Propert is located.

Conditional Commitment Letter: The letter dated May 25, 2006 from Lender to
Borrower outlinig the terms and conditions upon which Lender expressed its wi11Dgness to

make the Loan to Borrower.

Contract Year: The 12 month period beginng on the first day of the fist complete month following the Business Open Date and each 12 month period thereafer. If the Business Open Date occurs on the first day of a calendar month, the Contract Year shaJl commence on
such date.
Contractor: The term "Contractor" is derined in Section 2.l(h).

Deed of Trust: The term "Deed of Trust" means that certain Deed of Trust with
Assignent of Rents, Security Agreement and Fixture Filing dated as of even date herewith,
executed by Borrower in favor of Lender.

Default Rate: The term "Default Rate" shall have the meaning set fort in the Note.
Disbursement: The term "Disbursement" means a disbursement of Loan proceeds made Borrower.
Disbursement Agreement: The term "Disbursement Agreement" means that certai

by Lender to or for the benefit of

Disbursement Agreement Owner and Contractor in the form of Exhbit D attched hereto and
made a par hereof, to be executed by Borrower and Lender substantially concurrently with the.
recordation of the Deed of

Trust. .
(h).
2

Engineer: The term "Engineer" is defined in Section 2.1

Environmental Indemnity: The term "Environmental Indemnty" mean that certain
Environmental Indemnty dated as of even herewith, executed by Borrower in favqr of Lender.

Event of Default: The term "Event of Default" is derined in Section 4.

82461 arpm Loan Agreement vL.doc

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Facilty Number: 82461/SCDB65975 Customer Account Number: 0996439

Fictitious Deed of Trust: The term "Fictitious Deed of Trust" is defied in the Deed of

Trut.
First Anniversary Date: The term "First Annversar pate': is defined in Section 1.5.
o Gross Sales: All Store sales as included in the definition of "Gross Sales" in Arcle the CD Store Agreement.
The term "Improvements" shal have the meang set fort in the

7.02(b) of

. Improvements:
Fictitious Deed of

Trust.

Indemnifed Costs: The term "Indemned Costs" means all actual or theatened
liabilities, claim, actions, causes of action, judgments, orders, damages (inc1uding foreseeable and unforeseeable consequential damages), costs, expenses, fines, penalties and 10sses (including
sin paid in settement of clais and al1 consultant, expert and legal fees and expenses of

Lender's counsel), but exc1udig such costs as may be attbutab1e to the gross negligence or
wilfu1 misconduct of

the pary seekig to be indemnfied.

Indemnified Parties: The term "Indemnfied Pares" means, collectively, Lender, its
parent, subsidiary and af1iated companes, assignees. of any of Lender's interest in the Loan or

the Loan Documents, owners of parcipation, syndication or other interests in the Loan or the.
Loan Documents, any purchasers of the Propert at any foreclosure sa1e or from Lender or any

of its afliates, and the offcers, directors, emp10yees and agents of each of them.
Loan: The term "Loan" is defined in Section 1. 1.

Loan Documents: The term "Loan Documents" mean the documents described in
Exhibit "C" attached hereto, as the same may be amended, renewed or extended from time to

tie.

Matarity Date: The term "Matuty Date" is defined in Section 104

Note: The term "Note" means that certai Secured Promissory Note (ampm Min
Market) of even date herewith, executed by BOITower to the order of Lender, which evidences

the Loan.

Obligations: The term "Ob1igations" is defined in Section 1.4.

o Pay Voucher: The term "Pay Voucher" sha11 have the meanng set fort in the
Disbursement Agreement.

Plans: The term "Plan" means detailed p1an and specifications for the Alterations.
Propert: The term "Propert" is defined in Recital A above.

BP 01537
82461 am/pm Loan Agreement vl.doc

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Facilty Number: 824611SCDB65975 Customer Account Number: 0996439

Senior Lender: Omn Financial

$1,925,000.00 .-

Senior Loan: That certn loan from Omn Financial to Borrower in the amount of

Senior Loan Documents: Those certain documents and agreements executed by
Borrower in favor of Senior Lender evidencing and securg the Senior Loan, including tht

promissory note in the origina! principal amount of $1,625,000.00 (the "Senior Note") and that

certain deed of trst dated August 12, 2003 and recorded on November 7, 2003 as intrment number 2003-0022960 in the Offce of the San Benito Recorder (the "Senior Deed of Trust"). The Senior Note and the Senior Deed of Trust are modified to include the pricipal amount of

number . and recorded in the Offce of the San Benito Recorder.
Store: The term "Store" is defined in Recital A above.
Title Company:

$300,000.00 evidenced by dated as instent

The term "TitJe Company" means Commonwealth Land Title

Company.

Tite Policy: The term "Title Policy" is defined in Section 2.1 (d).
Transfer: The term "Transfer" is defined in Section 8.

Trustor: AVA Globa1 Enterprise, Inc., a California corporation
1.

Amount and Terms of the Loan.
1.1 AmOW1t of Loan. Lender agrees to make available to the Borrower, upon

the terms and conditions set fort in this Agreement, a loan (the "Loan") in the pricipal amount
of $150,000.00 (the "Base Loan Amount.
1.2

Refresh & Refubish Funds:
If as of the 11 th anversar of the first disbursement under the Loan, the terms and cQnditions of the Loan

provided

Borrower is not then in default under any of

Agreements, Loan Documents, or Franchise Agreements, BPWCP may elect, in its sole and absolute discretion, but shall not be obligated to, disburse up to Seventy-Five Thousand and 00/100 DoBars ($75,000) (the "Refresh & Refubish Funds") to or on beha!f of Borrower to enable Borrower to .comply with Section 5.05 of the CD Store Agreement, and to be used for non-strctual changes to the Improvements, such as, updating and retrofitting the interior of tht: Improvements to comp1y with Lender's then-curent vis.ua! and design standards and layout for its ampm mii markets (the "Refresh Requirements"), including, but not Jimited to, new paint, flooring, signage, installation of new fixtues, equipment, and the like (collectively, the "Refresh & Refubish"). The Refresh & Refubish Funds shall be used solely to finance the cost of the

82461 ampm Loan Agreement v l.doc

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Facilty Number: 82461/SCDB65975 Customer Account Number: 0996439

ReÍÍesh & Refubish and to otherwse comply use or purose whatsoever. If Lender's disbursement of

with the Refubish Requirements, and for no other Lender elects to advance the Refresh & Refubish Funds, & Refurbish Funds to or on bel1a1f of the Refresh Borrower shall be
the
the Refresh & Refubish Funds, the followig conditions have

conditioned upon the satisfaction, asdeternined by Lenderin ilSsok discretion, that as of date of the first disbursement of

been satisfied:
(a)

Borrower shall be in ful1 compliance with the terms and conditions of the
the

Loan Documents;
(b) Borrower shall be in ful compliance with the terms and conditions of

CD Store Agreement and the CD Agreement;

( c) Lender has reviewed and approved the financia1 condition and management capabilities of Borrower, determined that the net cash flow from the Store is
suffcient to cover debt service, and approved the economic feasibility of

the Store;

(d) The disbursement of

the Refresh & Refurbish Funds has been approved by

Lender's appr~priately authorized credit offcers or commttees;
(e) Borrower has provided to Lender (i) copies of all governental"

approvals, licenses and permts required in connection with the Refresh Requirements, and (ii)

all equipment rental agreements; and

of " (f) Lender shaH have approved the competency, reliability and solvency the general contractor proposed to be retained by Borrower, and the proposed agreement between
Borrower and the proposed genera! contractor pertainig to the peimttg and constrction of

the Refresh Requirements.

1.3 Purpose of the Loan. The proceeds of the Loan, includig without limitation the Additional Funds disbursed as provided above in Section 1.2, shall be used
exclusively to ffd (i) costs and expenditures associated with improvements to and/or purchases

of equipment for use at the Store as described in Exhbit A attached hereto, and (ü) at the
election of Lender, payment of the processing fee set fort il Section 3.11 below (col1ectively,

the "Pemùtted Uses"), and for no other use or purpose whatsoever.

1.4 Term of Loan. If not sooner repaid, the outstanding pricipal amount of the Loan (less amounts deemed repaid pursuant to Section 1.6 below) and all other amounts
owig under the Loan Documents (collective1y, the "Ob1ig:ations") shal1 be due and payable on

the date which is twenty (20) years foHowing the Business Open Date ("Matutv Date"). Lender
shall deterne and confrm to Borrower in wrting the Business Open Date. Borrower may

prepay the Obligations in whole or in par without penalty, at any time. Lender may accept parial payments, whether or not marked "paid in full", without waiving its rights or remedies
under ths Agreement.

82461 ampm Loan Agreement v1.doc

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Nmnber: 82461/SCDB65975. C;ustomer Account Ninber: 0996439
Facility

1.5 Amortization and Interest Payments. Beging on the 1ast day of the first

Contract Year ("First Anversar Date") and continuig on each anversary of the First Anversar Date, Borrower shall make anual pricipal payments in the amount equal to five
percent (5%) of the then outstandig principal balance of the.LoaD as of the First Aniversary

Date (such anual amount shall be referred to herein as the "Amortization Amount"). Notwithtanding the immediate1y preceding sentence, in the event Lender disburses a1l or any
porton of the Loan afer the First Amversar Date, Lender shall adjust the amount of anual

principal reduction payments due on each ensuig aniversary of the Firt Anversar Date so

as to fu1ly amortze the principa1 balance of the Loan by the Matuty Date. In .addition to
makng anual payments of the Amortization Amount, Borrower shall pay to Lender on the First

Anversar Date and on each anversar of the First Anversar Date all accrued and unpaid
interest on the Loan (at the rate set fort in Section 2 of

the Note) for the prior twelve (12) month

period, as determed by Lender. The amounts due pursuant to ths Section 1.5 shall be paid by
Borrower to Lender no later than sixty (60) days after the end of each Contract Year.
1.6 Repavment Through Store Sales. Notwithstanding anythig to the contrary
contaied in Section 1.5 above, if during a given Contract Year Borrower has Gross Sales with

respect to its Store of at least the Anual Guaanteed Amount, then the Loan shaH be deemed to
be repaid by Borrower as of the last day of such Contract Year (i) five percent (5%) of the then

outstanding principal balance of the Loan (subject to adjustment as provided in Section 1.5), and .

(ii) all interest which accrued under the Note durg such Contrct Year. Durg the first
Contract Year only, so1e1y for puroses of determining whether Borrower has met the Anual
Guaranteed Amount for such Contract Year, the actual Gross Sales with respect to Borrower's Store during such Contract Year shaH be grossed up by an amount equa1. to one-twelfth of the

Anual Guaranteed Amount. Borrower acknowledges and agrees that it has itself paricipated in the determation of the Anual Guaranteed Amount, that such sales goa1 is reasonable and that

Borrower's failure to achieve Gross Sales of at least the Anual Guaranteed Amount each Contract Year wI1 result in repayment obligations. Borrower fuer acknowledges and agrees
that such deemed repayment of debt will result in taxable income to Borrower and that Lender

wil be deliverig to Borrower an IRS Form 1099 reflectig such income. Borrower fuer
acknowledges and agrees that any deemed repayment shaH be calcu1ated based only on the

register sales made by Borrower for the applicable Contract Year, and that if durg any Contract

Year. .
82461 ampi: Loan Agreement vI.doc

Year, Borrower's register sales exceed the Anual Guaranteed Vo1mne of

the Products for such

Contract Year, such excess register sales canot be appJied to any previous or futue Contract

the Loan as set fort in Section 1.6 shaJ1 not operate as a waiver of its right to collect or demaad repayment of Default. the Ob1igations upon the occurence of an Event of
1.7. No Waiver. Lender's deemed repayment of any portion of

1.8 Promissory Note. The ob1igation of the Borrower to repay the Loan shall the be evidenced by the Note. Lender shall record and endorse on the schedule formng a par of

Note appropriate notations to evidence (i) the date and amount of any Disbursement made by

BP 01540
6

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Facility Number: 82461/SCDB65975 Customer Account Number: 0996439

Lender, (ii) the date and amount of each payment of pricipal by the Bon-ower, and (ii) the date

and amount of any deemed repayment of any porton of the Loan by Lender pursuant to
not afect the obligations of

Section 1.6; provided, however, that Lender's failure to record or endorse any such amount shall the Borrower under ths Agreement~or the other Loan Documents.
1.9 Audit Rights. So long as there are outstanding Ob1igations, Lender may,

upon reasonable notice to Borrower, audit Borrower's books and records pertng to Gross Sales. BOITower agrees to cooperate ful1y with such audit and, if sÙch audit reveals an overreporting of Gross Sales, Borrower shal immediately pay to Lender any amounts then owing to Lender on account of such over-reportg p1us interest at the Default Rate. In addition, if Gross
Sales have been overstated by more than five percent (5%), BOITower shall reimburse Lender

upon demand for Lender's actual out of pocket audit costs.

Before Lender becomes ob1igated to make any 2. Conditions to Disbursement. Disbursement under ths Agreement, all conditions to such Disbursement set fort below shall have been satisfied at Borrower's sole cost and expense in a manner acceptable to Lender in the exercise of its reasonable judgment. Bon-ower acknow1edges that de1ays in Disbursements may result from the time necessar for Lender to verify satisfactory fulfil1ment of any and aU conditions to a given Disbursement. Borrower consents to all such delays. No waiver of any . condition to Disbursement shal1 be effective uness it is expressly made by Lender in wrting. If. Lender makes a Disbursement before fulfflrent of one or more required conditions, that Disbursement a10ne shal1 not be a waiver of such conditions, and Lender reserves the right to
require their fu1fil1ment before makng any subsequent Disbursements.

2.1 Loan Closing and First Disbursement. Lender shall not be required to
make the first Disbursement unless all of the fol1owing conditions are satisfied on or before Janua 7, 2007.
(a) Bon-ower shaH have complied with all conditions or requirements

of Lender as set forth in the Conditional Commtment Letter, including without limitation (i) the Conditiona satisfaction of the conditions set fort in paragrphs (a) though (e) on Page 1 of Commtment Letter, (ii) Lender's receipt of reimbursement from Borrower for all costs incurred
by Lender in connection with the Loan, and (ii) Lender's receipt of all of

the items set fort in

Exhbit "B" to the Commitment Letter.
(b) All Loan Documents shaH have been duly executed by Borrower

and any guarantor and received by Lender, inc1uding appropriate resolutions or certificates of authority.
(c) Lender shaH have received wrtten confnnation from the Title

Trust and the other Loan Documents which are in recordable fonn shal1 have been duly recorded in the offcial records of the county where the Property is located, and (ii) Title Company shaH be in a position to deliver for fiing with the CalifoI1a Secretar of
Company that (i) the Deed of

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Facilty Nwnber: 824611SCDB65975. Customer Account Number: 0996439

State a UCC-L Financing Statement which perfects Lender's secuuty interest in all personal
propert and fixtues covered by the Deed of

Trust. .

10 ALTA Lender's extended coverage loan policy of titlè insurance in a liability amount satisfactory to Lender ("Title Policy''). The Title Policy shall insure the Deed of Tru as a
second-priority lien on BOITower's fee estate in the Propert, s~bject only to exceptions
consented to by Lender in wrtig, and shall contai such endorsements as Lender may require.

(d) The Title Company shall have issued or commtted to issue an LP.' -

No title matter may be insured over by the Title Company without the express wrtten consent of Lender.
(e) Borrower shaH have provided to Lender evidence of commercia!

general Jiability insurance namg Lender as an additiona1 insured, on an "occurence" basis against c1ais for "personal injur" liabilty, including bodily injur, death or propert damage liabilty, with a 1imit of not less thii One Mil1on Dollars ($1,000,000.00). Such insurance shal name Lender as an additional insured and shall be priary and non-contributory with any other
insurance cared by Lender.
(í) If required by Lender, BOITower shall have obtained performance

and labor and material payment bonds in dual obligee form covering the performance of the -

Contractor and such principal subcontractors for the Alterations as Lender may designate. The
terms' of the bonds and the bonding company shall be acceptable to Lender, and all required

bonds and the contracts which they cover shall have been duly recorded or filed in accordance
with applicable Californa l'aw.
(g) Lender shall have approved the inormation set forth in Borrower's

completed Environmenta1 Questionnaire. If Lender so requies, Lender shall also have received
a report prepared by a licensed or registered environmental engieer or other qualified par

satisfactory to Lender stating that there are no Hazdous Substances, as deffned in Section, 1.5 of the Environmental Indemnty, present in, on, under or around the Propert, and that there is no condition or circumstace which warants fuer investigation or analysis in the opinon of the preparer of the report.
(h) Lender shall have approved the architect ("Architect"), engineer

("Engineer"), general contractor ("Contractor") and principal subcontractors to be used in
connecton with the Alterations.
(i) Lender shall have received and approved the Plans, together with

(i) a detailed budget for the Alterations and the other Penntted Uses of Loan proceeds, and (ii)
copies of

building permIts.

. U) Lender shall have received and approved (i) all contracts entered in by BOITower with the Architect, Engineer and Contractor, respectively, (ii) an assignent of

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each such contract referred to clause (i) in favor of Lender, in form and substance satisfactory to Lender, together with an assigruent of the Plans, and (iii) consents to each such assignent

executed by the Architect, Engineer and Contractor, respectively, in form and substance
satisfactory to Lender.
(k) . Lender shall have received such fiancial statements and other as it may requie regardig the financial condition of Bon-ower, any

. fIDancial information

guarantor, the Store or the Propert.
.(1) Lender shall have received evidence of

the due formation and good

standig of Bon-ower and any guarantor, including such organzational docunents (including
parership agreements, operatig agreements, aricles of organation or aricles of

incorporation) and certificates of statu as Lender may require.
2.2 Disbursement if:

Any Disbursement. In no event shall Lender be required to make any
(a) Bon-ower fails to observe any condition or term set fort in the
(b) For any reason the Title Company fails or refues at Lender's'

Disbursement Agreement; or .
request to issue a CLTA Form 122 endorsement or Ï1s equivalent; or

(c) The Improvements are material1y damaged and not repaired, unless Lender receives funds from Borrower or insurance proceeds suffcient to pay for all repairs in a timely manner; or

(d) The Propert or any interest in it is afected by emient domain or
condemnation proceedings; or
(e) Lender receives a bonded or unbonded stop notice, uness

Borrower files a release bond satisfactory to Lender in its reasonable judgment; or
(f) Under any of the Loan Documents, a default or Event of Default

(as derIDed in that document) has occuced and is continuig, or an event has occured that with notice or the passage of time could become a default or Event of Default.
2.3 Disbursement Procedures. Disbursements for Alterations shall be made in which are incorporated herein by ths reference. Lender may delegate the disbursal and verification duties
disbursement requests to and submit documentation for disbursements to the thd par.

a~cordance with the procedures set fort in the Disbursement Agreement, the terms of

to a thd par, in which case Lender wil notif Borrower and Bon-ower will make

Disbursements of the Loan shall be made in the form of vouchers from Borrower to contractors

and/or suppliers. The contractors and/or suppliers though the thd par fuding company wil

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redeem the vouchers for payment. Except as otherwse provided in the Disbursement

Agreement, loan proceeds shall be available for disbursement as follows: one-fourt of the 10an
amount at the time BOITower obtains pennts for constrction; one-four of the loan amount

when Lender verifies that'the improvements are 25% complete; one-four of the loan amount
when Lender verifies that the improvements are 50% comp1ete and one-four of the loan

amount afer Lender veries that the improvements are 75% complete. The Additional Funds, if
any, shall be available for disbursement in accordance with the terms of Section 1.2 above.

Lender reserves the right, prior to makg any disbursement, to require origial paid invoices

supporting the expenditue of loan proceeds, releases of mechancs liens, and/or additional security for the Loan as Lender may determine in its sole discretion. The thd par fund control
company fee, if any, will be paid by Lender.
3. Covenants of the Borrower. Borrower promises to keep each of the covenants

set forth below, uness Lender has waived compliance in wrting.
3.1 Commencement and Comp1etion of Improvements. Bon-ower shaH obtain building pemmits and connence constrction of the Alterations no later than Januar 11, 2007.

Borrower shall complete the construction of the Alterations, obtai a certficate of completion or
deterned by Lender) by not later than Ju1y 11,2007. Borrower's failure to observe any of

a. certificate of occupancy from the appropriate govermenta authority, and open for business (as' thedeadlines set fort in ths Section 3.1 shall be an Event of Default and shall not be subj ect to the
cure period set fort in Section 4.9 below.

3.2 Permits. Licenses and Approvals. Borrower shall construct the

Alterations in a good and workmanlike maner in accordance with sound building practices as
well as the Plans and all applicable laws pertaining to such construction. Borrower shaH

properly obtain, comply with and keep in effect all permits, licenses and approva1s which are
required to be obtained from govermental bodies in order to constrct and occupy the

Alterations and operate the Store.
3.3
Site Visits.

(a) Lender and its agents and representatives shaH have the right at any reasonable time to enter and visit the Propert for the puroses of perfonng an appraisal,
observing the work of c'onstrction, examg all materials and determinig whether

such work conforms with the Plans approved by Lender. Lender shall also have the right to exame, copy and audit the books, records, accoi.ting data and other documents of Borrower and its
contractors which re1ate to the Propert 'or constrction of the Alterations. In each instance,

Lender shall give Borrower reasonable notice before entering the Propert. Lender shaH make
reasonable efforts to avoid interferig with Borrower's Store operations.

(b) Lender is under no duty to visit the Propert or to supervse or

observe constrction or to examne any books or records. Any site visit, observation or

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examination by Lender shal be solely for the purpose of protecting Lender's rights and interests.
No site visit, observation or examation by Lender shall impose any' liability'on Lender or result

in a waiver of any default of BOITower. In no event shal any site visit, observation or
examination by Lender be a representation that there has beell or shall be compliance with the
Plans, that the constrction is free from defective materials or workmanship, or that the
constrction complies with any other applicable law.

3.4 Protection Ai:aist Lien Claims. BOlTower shall prompdy payor

otherwse discharge all claims and liens for labor done and materials and services fushed in connection with the constrction of the Alterations. BOlTower shall have the right to contest in
good faith any claim or 1ien, provided that it does so diligently and without prejudice to Lender
. or delay in completing the Alterations.

3.5 Pavment of Expenses. BOlTower shall pay Lender's costs and expenses

incured in connection with the makg, disbursement and administration of the Loan, as well as any revisions, extensions, renewals or "workouts" of the Loan, and in the exercise of any of Lender's rights or remedies under tts Agreement. Such costs and expenses include charges for tit1e insurance (including endorsements), fiing, recording and escrow charges, fees for appraisal,
architectuaJ and engineerig review, constrction servces and environmental services,

mortgage ta,"(es, legal fees and expenses of Lender's counsel and any other reasonable fees and,

costs for servces, regard1ess of whether such services are fuished by Lender's employees or
agents or independent contractors. BOlTower acknowledges that amounts payable under ths

Section are not included in any loan or commitment fees for the Loan.
3.6 Financial Information. Borrower shall keep tre and COlTect financial

books and records on a cash basis pertaining to Gross Sales and to the constrction of any
Alterations. Upon request of Lender from time to time, BOlTower shall ddiver balance sheets

and income statements to Lender for itse1f and the Store, together with a statement showing all changes in the financial condition of BOlTower and the Store which occured durg the preceding Contract Year. These financial statements may be BOlTower prepared. Borrower
shal also fush to Lender upon request signed copies of any tax retus and such other

inormation as Lender may reasonably request concerng its afair and properties.
3.7

Notices. Borrower shall prompdy notify Lender in wrting of:

(a) Any litigation afecting Borrower or any guarantor, where the
amount claimed is Fify Thousand Dollars ($50,000) or more;

receive ftom any governenta, judicial or legal authority, giving notice of any clai or
assertion that the Store, the Propert or any Alterations fail in any respect to comply with any

(b) Any commuucation, whether wrtten or oral, that BOlTower may

applicable goverrentallaw;

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(c) AIy default by the Project Manager, Contrctor or any

subcontractor, material supplier or surety; and

(d) Any material adverse change in the physical condition of the
Propert (inc1udig any damage suffered as a result of earqu~es 'or floods), or in Borrower's

or any guarantor's business condition (financial or otherWise), operations, properties or
prospects.
3.8 Indebtedness. Except for the Senior Loan and except as otherwise

provided under the Loan Documents, Borrower win not create, incur or assume any
indebtedness, commItment or other obligation for borrowed money without the express prior
wrtten consent of

Lender. .
Insurance.

3.9 Perfonnance of Acts. Upon request by Lender, Borrower shall perfonn all acts which may be necessar or advisable to perfect any Hen or securty interest provided for in the Loan Documents or to cary out the intent of the Loan Documents.
3.10

(a) Borrower shall provide, maitan and keep in force at all ties prior to repayment of the Loan, the insurance requied by Section 2.1 above and by the'

Disbursement Agreement. Also at all such times, Borrower shall provide, maintain and keep in force any and all additiona1 insurance that Lender in its reasonable judgment may from time to
tie require, against ìnsurab1e hazards whhch at the time are commonly insured against in the
case of property similar1y situated. Such additional insurance may inc1ude flood insurance as

law and earquake insurance as required by Lender. At Lender's request, Borrow,,r shall supply Lender with an original of any policy or a certficate of coverage.
required by federal

(b) All policies of insurce required under ths Agreement and the

Disbursement Agreement shall be issued by companes approved by Lender havig a mium
A.M. Best's rating of A:IX. The limts, coverage, fomms, deductib1es, inception and expiration

dates and cancellation provisions of al such poHcies shall be acceptable to Lender. In addition,
each required propert insurance policy shall contain a Lender's Loss Payable Form (Form 438

BFU or equivalent) in favor of Lender, and shall provide that all proceeds be payable to Lender

to the extent of its interest. An approval by Lender is not, and shall not be deemed to be, a .
representation of the solvency of any insuer or the suffciency of any amount of insurance.
(c) Each poHcy of insurance requied hereunder and under the

Disburement Agreement shall provide that it may not be modified or cancelled without at least
thrt (30) days' prior wrtten nottce to Lender. When any required insurance policy expires,

Borrower shal1 fush Lender with proof acceptab1e to Lender that the policy has been reinstated or a new policy issued, continuing in force the insurance covered by the policy which expired.

Borrower shall also fush Lender with evidence sattsfactory to Lender that all premiums for

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such poJicy have been paid with th (30) days of renewal or issuace. If Lender fails to
receive such proof and evidence, Lender shall have the right, but nbt the obJigation, to obta curent coverage and advance fuds to pay the premimns for it. Borrower shall repay Lender

imediately on demand for any advance for such premimns, i.11ch ,shall be considered to be an additional loan to Borrower bearng interest at the Default Rate and secured by the Deed of Trust and which shall not be subject to deemed repayment in accordance with Section 1.6 above.
3.11 Processing Fee. Borrower shall pay to Lender upon execution of ths Agreement by Borrower a processing fee in the amount of $1 0,000.
4.

Events of Default.

The occurrence of any of the followig events shall constitute an "Event of
Default' hereunder:
4.1 The Borrower assigns this Agreement or any of the other Loan Documents
to a thrd pary without the prior wrtten consent of Lender: or

4.2 The Borrower assigns the CD Store Agreement to a thd par without the

prior vvitten consent of Lender; or
4.3 The Borrower fails to observe any of the deadlines set forth in Section 3.1

above or, after commencing operations, there occurs a cessation of operations at the Store for
thirt (30) consecutive days; or

4.4
wrtten bonsent; or

There shaH occur a "Transfer" (defined below) without Lender's prior

4.5 The CD Store Agreement is temminated by either Lender or Borrower prior

to the end of its stated tenn; or

4.6 There shall occur a default or "Event of Default" W1der any contract entered into by Borrower with the Architect, Engineer or Contractor; or
4.7 Borrower fais to make any payment due W1der the Loan Documents

with five (5) business days after the date when due; or
4.8 Borrower fai1s to comply with any provision contained in ths Agreement other than those provisions elsewhere referred to in ths Section 4, and does not cure that failure,
withn thrt (30) days afer written notice from Lender; or

4.9 Any representation or warranty made by Borrower in the Loan Documents
or in any Pay Voucher, financial statement or document deJivered puruant to ths Agreement, or

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in connection with the makng of any Disbursement, shall próve to have been incorrect, untre or misleading in any material respect when i:ade; .

4.10 A defauh or "Event of Default" shall ha,,.. oc~ured under any of the other Loan Documents; or
4.11 Loan Documents; or
There shall occur a default or event of default under any of the Senior

4.12 The BOITower shall fail to pay when due the pricipal of or interest on any
other indebtedness secured by the Propert, or there shall occur any other event that would

permt the hoJder of such indebtedness to accelerate the maturity thereof; or

4.13 The BOITower shall become insolvent, or admit in wrtig its inabilty to
pay its debts as they matue, or make an assignent for the benefit of creditors, or apply for or
consent to the appointment of a receiver or trstee for it or a substantia1 par

of its property or

business, or such a receiver or trtee otherwise shall be appointed and shall not be discharged

within 30 days after such appointment, or there shall be instituted by or against Borrower a
banptcy, ins01vency, reorganization or Jiquidation proceeding and such proceedig shal not

be dismissed within 30 days ("Insolvency Proceeding"), or any order, judgment or decree shall
be entered against the BOITower decreeing its dissolution, or the Borrower's existence shall'
otherwse be termated.

5.

Remedies.

5.1 Upon the occurrence of any Event of Default, Lender may, at its option, exercise all remedies and rights available to it under ths Agreement, the other Loan Documents. and under applicable law or in equity or by statute, including without limtation, the right to (i)
declare all or any par of the Obligations to be forthwith due and payable, without presentation,
demand, protest or notice of any kid, all of

which are hereby expressly waived by the BOITower;

or (ü) tennate any obJigation of Lender hereunder to make fuer Disbursements. All of Lender's rights and remedies shall be cumulative. No delay or failure of Lender in the exercise deemed a waiver of that right by Lender, of any right or remedy provided for hereunder shall be and no exercise or parial exercise or waiver of any right or remedy shall be deemed a waiver of
any fuer exercise of such right or remedy or of any other right or remedy that Lender may

have.

5.2 A1so upon any Event of Default, Lender shall have the right in its sole discretion to enter and take possession of the Propert, whether in person, by agent or by courappointed receiver, and to take any and al1 actions which Lender in its s01e discretion may

. consider necessar to complete constrction of the Alterations, including makng changes in the
Plans, work or materials and entering into, modifying or tennating any contractual
arangements, all subject to Lender's right at

any tie to discontinue any work without liabi1ity,

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If Lender chooses to complete the Alterations, it shall not assume any liabilty to Borrower or any other person for completig the Alterations or for the mamer or quality of constrction of
the Alterations, and Borrower expressly waives any such liabilty. If Lender exercises any of

the

rights or remedies provided in this subparagraph, that exercise,shall not make Lender, or cause Lender to be deemed to be, a parer or joint ventuer of Borrower. Lender in its sole discretion, may choose to complete constrction in its own name. Al sums which are expended by Lender
in completing construction shall be considered to be an additional_loan to Borrower bearng

interest at the Default Rate, secured by the Deed of Trust and not be subject to deemed
repayment in accordance with Section 1.6.

5.3 For puroses of detemmng the outstanding balance of the Loan at the

time an Event of Default occurs hereunder, deemed repayment of pricipal and interest by Lender puruant to Section 1.6 shaH be calculated based upon the percentage of the Anual Guaranteed Amount achieved by Borrower though the 1ast day of the calendar month
immediate1y preceding the occurrence of the Event of Defawt. For examp1e if the CD Store

Agreement is termnated by Borrower on May 15, 2005 and the current Contract Year expires
December 31, 2005, Lender will calculate total Gross Sales durng the period Januar 1, 2005 total Gross through April 30, 2005 and compare such total to the Anual Guaranteed Amount. If

the Anual Guaranteed Amount, the outstanding principal 33% of the Loan wil be reduced by an amount equal to 33% of the anual principaJ reduction payment due for that Contract Year (deteimined in accordance with Section 1. 6 above).
Sales durng such period equal balance of

6. Interest and Late' Charges. Borrower hereby acknow1edges that late payment

by BOITower to Lender of the payments due under this Agreement wi1 cause Lender to incur

costs not contemp1ated by this Agreement, the exact amount of which will be extremely difficult

to ascertain. Accordingly, if any payment due from Borrower under ths Agreement is not
received within five (5) business days after the date on which such payment is due and payable, then without any requirement for notice to Borrower, Borrower shall pay Lender a late charge equal to five percent (5%) of such overdue amount. Borrower and Lender hereby agree that such late charge represents a fair and reasonable estimate of the costs Lender will incur by reason of late payment by Borrower. Acceptance of such late charge by Lender shall in no event constitute a waiver of Borrower's default with respect to such overdue amount, or prevent Lender from exercising any of the rights and remedies granted hereunder. In addition to the foregoing, Borrower agrees to pay interest at the. Default Rate on any and all sums due under ths Agreement from the payment due date until the date fully paid by Borrower.
7. Transfers. Borrower agrees that, in the event of any "Transfer" (as defined

below) without the prior wrtten consent of Lender, Lender shall have the abs01ute right, at its option, without prior demand or notice, to declare the- ObJigations immediately due and payable. Consent to one such Transfer shall not be deemed to be a waiver of the right to require consent to
futue or successive Transfers. Lender may grant or deny such consent in its sole discretion and, if consent shou1d be given, any such Transfer shall be subject to all obligations of Borrower

under the Loan Documents, such transferee shaH assume all obligations under the Loan

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Documents and agree to be botmd by all provisions contaied herein and therein, and Lender may require that Borrower pay to Lender an assumption fee in the amount of five percent (5%) of the remaining balance of :te unamortzed Loan. Such assumption shal not, however, release Borrower or any guarantor from any Jiability to Lender wit1out the prior wrtten consent of
Lender. As used herein, "Transfer" shal1 mean:
the (a) any sale, transfer, conveyance, hypothecation, encumbrance or 1ease of Propert or any part thereof or interest therein to any person or entity, whether voluntar, involtmtar, by operation oflaw, or otherwse (except for any deed of trst executed in favor of EGI in connection with the Citicorp Loan);
(b) any change of control in Borrower if, withn thrt (30) days afer such
change of contra1, Borrower has not paid in ful1 all Obligations mean the ability to direct the day to day management of the afairs of

("contral" as