EXHIBIT 10.4
ASSIGNMENT OF TERM LOAN AGREEMENT
AND DEED OF TRUST
THIS ASSIGNMENT OF TERM LOAN AGREEMENT AND DEED OF TRUST is made and
entered into effective as of March 23, 2005 by and between PACIFIC ETHANOL,
INC., a California corporation ("ASSIGNOR"), PACIFIC ETHANOL, INC., a Delaware
corporation ("ASSIGNEE"), XXXXXXX X. XXXXX, an individual ("XXXXX"), and XXXXX
DIVERSIFIED, INC., a California corporation ("LDI").
R E C I T A L S:
A. Assignor executed that certain Term Loan Agreement by and among LDI,
as Lender, and Assignor, as Borrower, dated as of June 16, 2003, and amended on
July 29, 2004 and on March 10, 2005 (as amended, the "AGREEMENT"), which
provides for a term loan from LDI to Assignor in the amount of $5,100,000 (the
"LOAN"). The Agreement also provides that LDI has the right to purchase shares
of common stock or to convert up to $1,500,000 of the principal owing under the
Agreement to shares of common stock of Assignor.
B. Repayment of the Loan under the Agreement was and is secured by that
certain Deed of Trust (Non-Construction) Security Agreement and Fixture Filing
with Assignment of Rents dated June 20, 2003, executed by Assignor, as Trustor,
and LDI, as Beneficiary, naming Chicago Title Company as Trustee (the "DEED OF
TRUST"), recorded May 14, 2004 as Instrument No. 2004020570, in the Official
Records of Madera County, California. The Deed of Trust encumbers certain real
property located in the County of Madera, State of California, more particularly
described in EXHIBIT "A" attached hereto and incorporated herein (the
"PROPERTY"), and all tangible personal property now owned or hereafter located
on the Property.
C. Repayment of the Loan under the Agreement was and is guaranteed
under that certain Continuing Guaranty dated as of June 20, 2003 by and among
Xxxxxxx X. Xxxxx, as Guarantor, and LDI, as Lender (the "GUARANTY").
D. Assignor desires to assign the Agreement and Deed of Trust, and its
rights and obligations thereunder, to Assignee, and Assignee desires to accept
such assignment (the "ASSIGNMENT"), in connection with the share exchange
transaction (the "SHARE EXCHANGE TRANSACTION") pursuant to that certain Share
Exchange Agreement by and among Assignor, Accessity Corp., a New York
corporation ("ACCESSITY"); Kinergy Marketing, LLC, an Oregon limited liability
company ("KINERGY"); ReEnergy, LLC, a California limited liability company
("REENERGY"); the shareholders and warrantholders of Assignor, and the limited
liability company members of Kinergy and ReEnergy, dated as of May 14, 2004 and
subsequently amended by Amendment No. 1 to Share Exchange Agreement dated as of
July 29, 2004, Amendment No. 2 to Share Exchange Agreement dated as of October
1, 2004, Amendment No. 3 to Share Exchange Agreement dated as of January 7,
2005, Amendment No. 4 to Share Exchange Agreement dated as of February 16, 2005,
and Amendment No. 5 to Share Exchange Agreement dated as of March 3, 2005.
Pursuant to such Share Exchange Transaction, the shareholders of Assignor will
exchange all of their shares of common stock of Assignor for shares of common
stock of Accessity and thereby become a wholly-owned subsidiary of Accessity.
E. Assignor desires to sell, pursuant to the Securities Purchase
Agreements by and between the Assignor and various investors, up to 700 units
("UNITS") at a purchase price of $30,000 per Unit, with each Unit consisting of
10,000 shares of Assignor's common stock, a two-year warrant to purchase 2,000
shares of common stock at an exercise price of $3.00 per share, and a two-year
warrant to purchase 1,000 shares of common stock at an exercise price of $5.00
per share (the "SECURITIES PURCHASE TRANSACTION").
F. LDI desires to consent to the Assignment and Share Exchange
Transaction as described herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements of the parties herein, Assignor and Assignee
hereby agree as follows:
1. ASSIGNMENT. Assignor hereby transfers, releases, assigns and
delivers unto Assignee and its successors and assigns, the Agreement and Deed of
Trust, together with all liens, security interests, guaranties, assignments,
covenants, rights and obligations of Assignor in any way related to the
Agreement and Deed of Trust. Assignment of the Deed of Trust shall be
additionally evidenced by Assignor's execution of an Assignment of Interest in
Deed of Trust in the form attached hereto as EXHIBIT "B" ("ASSIGNMENT OF DEED OF
TRUST").
2. ACKNOWLEDGMENT AND ACCEPTANCE BY ASSIGNEE. Assignee hereby
acknowledges and accepts the foregoing Assignment and assumes all of the rights
and obligations hereby assigned.
3. CONSENT TO ASSIGNMENT, SHARE EXCHANGE TRANSACTION AND SECURITIES
PURCHASE TRANSACTION. LDI hereby consents to the foregoing Assignment, Share
Exchange Transaction and Securities Purchase Transaction, and acknowledges that
Assignee will hereafter be solely responsible for all obligations under the
Agreement and Deed of Trust.
4. CONTINUATION OF GUARANTY. Xxxxx hereby agrees that the Guaranty
shall continue in full force and effect with respect to Assignee's repayment of
the Loan under the terms of the Agreement.
5. FURTHER COOPERATION. Each of the parties hereto agree to execute and
deliver such further documents, instruments and agreements, and to take any and
all such other actions and undertakings as may be reasonably necessary or
incidental to effectuate and carry out the provisions of this Assignment.
6. ATTORNEY'S FEES. In the event of any dispute between the parties
hereto involving the covenants, representations and/or warranties herein
contained or arising out of the subject matter of this Assignment, the
prevailing party shall be entitled to recover reasonable expenses, attorney's
fees and costs.
7. BINDING EFFECT. This Assignment shall be binding upon and shall
inure to the benefit of each of the parties hereto, and their respective
successors and assigns.
8. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, and all so executed shall constitute one agreement binding on all
parties hereto, notwithstanding that all parties are not signatories to the
original or the same counterpart.
9. GOVERNING LAW. This Assignment shall be governed by and construed in
accordance with the laws of the State of California.
10. AMENDMENT. This Assignment shall not be amended or modified in any
way except by a written instrument executed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date first above written.
ASSIGNOR: PACIFIC ETHANOL, INC.,
a California corporation
By: /S/ XXXX XXXXXXX
-----------------------------------------
Xxxx Xxxxxxx, Chief Executive Officer
ASSIGNEE: PACIFIC ETHANOL, INC.,
a Delaware corporation
By: /S/ XXXX XXXXXXX
-----------------------------------------
Xxxx Xxxxxxx, Chief Executive Officer
XXXXX: /S/ XXXXXXX X. XXXXX
---------------------------------------------
XXXXXXX X. XXXXX
LDI: XXXXX DIVERSIFIED, INC., a California
corporation
By: /S/ XXXXXXX XXXXX
---------------------------------------------
Xxxxxxx Xxxxx, Vice President
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EXHIBIT "A" TO ASSIGNMENT OF
TERM LOAN AGREEMENT AND DEED OF TRUST
LEGAL DESCRIPTION OF PROPERTY
Property description is attached hereto.
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EXHIBIT "B"
ASSIGNMENT OF DEED OF TRUST
---------------------------
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Xxxxx & Xxxxxx, LLP
X.X. Xxx 0000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxx, Esq.
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(Space above line for Recorder's use only.)
ASSIGNMENT OF INTEREST IN DEED OF TRUST
---------------------------------------
FOR VALUE RECEIVED, the undersigned, PACIFIC ETHANOL, INC., a
California corporation ("ASSIGNOR"), grants, assigns, and transfers to PACIFIC
ETHANOL, INC., a Delaware corporation ("ASSIGNEE"), all of its right, title, and
interest in and to that certain Deed of Trust (Non-Construction) Security
Agreement and Fixture Filing with Assignment of Rents dated June 20, 2003,
executed by PACIFIC ETHANOL, INC., a California corporation, as Trustor, in
favor of XXXXX DIVERSIFIED, INC., a California corporation ("LDI"), as
Beneficiary, naming Chicago Title Company as Trustee, recorded May 14, 2004 as
Instrument No. 2004020570, in the Official Records of Madera County, California
(the "DEED OF TRUST").
The Deed of Trust encumbers that certain real property located in the
County of Madera, State of California, as more particularly described in EXHIBIT
"A" attached hereto and incorporated herein by reference.
Assignor further grants, assigns and transfers to Assignee, Assignor's
rights and obligations under that certain Term Loan Agreement dated June 16,
2003, and amended on July 29, 2004 and on March 10, 2005, which was executed by
Assignor, as borrower, in favor of LDI, as lender, and which provides for a term
loan in the original principal amount of FIVE MILLION ONE HUNDRED DOLLARS
($5,100,000), (the "LOAN AGREEMENT"), together with all money due and to become
due under the Loan Agreement with interest, and all rights and obligations of
Assignor under the Deed of Trust.
[End of Document - Signature on Next Page]
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IN WITNESS WHEREOF, Assignor has executed this Assignment of Interest
in Deed of Trust as of March 23, 2005.
PACIFIC ETHANOL, INC.,
a California corporation
By: /S/ XXXX XXXXXXX
-----------------------------------------
Xxxx Xxxxxxx, Chief Executive Officer
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STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On March 23, 2005 before me, Xxxxxxx Xxxxxxx, personally appeared Xxxx
Koehler________________________________________________________________
_____________________________________________________________________ personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that by his signature
on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
Witness my hand and official seal.
/S/ XXXXXXX XXXXXXX
-------------------------------------
Notary Public
[SEAL]
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EXHIBIT "A" TO ASSIGNMENT OF DEED OF TRUST
LEGAL DESCRIPTION OF PROPERTY
Property description is attached hereto.
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