EXHIBIT 10.12
TERM LOAN AGREEMENT
(LYLES DIVERSIFIED, INC. -PACIFIC ETHANOL, INC.)
THIS TERM LOAN AGREEMENT (the "LOAN AGREEMENT") is made effective as of
June 16,2003, by and between LYLES DIVERSIFIED, INC., a California corporation
(the "LENDER") and PACIFIC ETHANOL, INC., a California corporation (the
"BORROWER").
A. Borrower has agreed to purchase certain real property consisting of
approximately 137 acres located in Madera County, California, on Avenue 12 about
four miles east of Highway 99 (the "REAL PROPERTY"). The Real Property is being
offered for sale by the trustee for the bankruptcy estate of Coast Grain
Company. The Real Property includes certain improvements and fixtures,
including, but not limited to, a grain storage and processing facility, an
office building, and two railroad sidings (the "EXISTING FACILITIES").
B. Borrower intends to expand the Existing Facilities by constructing
an ethanol production facility on the Real Property (the "MADERA FACILITY").
Borrower also intends, at some future date, to construct a second ethanol
production facility in California (the "SECOND FACILITY"). Borrower has selected
W.M. Lyles Co. (the "BUILDER") as the general contractor for the Madera Facility
and the Second Facility. The Lender is the parent company of Builder. Borrower
and Builder intend to enter into a design-build construction contract for the
construction of the Madera Facility and, at a later date enter into a second
design-build construction contract for the Second Facility (the "DESIGN-BUILD
CONTRACT").
C. Borrower requires financing to complete its acquisition of the Real
Property and Lender has agreed to loan monies and/or extend other financial
accommodations to Borrower against the security of the Real Property, subject to
the terms and conditions of this Loan Agreement.
NOW THEREFORE, in consideration of the mutual terms and conditions
contained herein, the parties agree as follows:
1. FACILITIES
1.1 THE TERM LOAN. Lender agrees to make a term loan to Borrower in the
amount of $5,l00,000.00. The credit facility described in this Section shall be
referred to below as the "TERM LOAN". The Borrower will pay interest on all
amounts owing under the Term loan until payment in full of any principal
outstanding thereunder.
1.2 INITIAL ADVANCE; DEPOSIT. On March 24,2003 Lender made an initial
advance to Borrower under the Term Loan in the principal amount of $510,000.00,
which Borrower used as a good-faith deposit for the purchase of the Real
Property (the "DEPOSIT"). Interest will accrue from March 24,2003 on the
principal amount of the Deposit, at the rates indicated in Paragraph 1.3 of this
Loan Agreement.
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1.3 REPAYMENT TERMS.
(a) INTEREST RATE. Interest under the Term Loan will accrue at
the following rates:
(i) A rate of five percent (5.00%) per annum through
June 19, 2004.
(ii) A rate per annum equal to the "WALL STREET
JOURNAL PRIME RATE" (as defined in Section 1.2(b)) plus two percentage points
(2.00%) from June 20,2004 until the Maturity Date (as defined in Section
1.3(d)).
(b) DEFINITION OF WALL STREET JOURNAL PRIME RATE. The "WALL
STREET JOURNAL PRIME RATE" for any day is a fluctuating rate of interest equal
to the highest rate published from time to time in the "MONEY RATES" section of
The Wall Street Journal as the Prime Rate for such day (or, if such source is
not available, such alternate source as determined by the Lender).
(c) COMPUTATION AND PAYMENT OF INTEREST. Interest shall be
based on a 365 day year and compounded monthly. Interest shall be paid monthly
commencing on June 20,3004, and continuing on the twentieth (20th) day of each
month thereafter. If interest is not paid as it becomes due, it may be added to,
become and be treated as a part of the principal, and shall thereafter bear like
interest.
(d) PRINCIPAL PAYMENTS/MATURITY DATE. One third of the
principal outstanding on June 20,2006 shall be paid on that date. Half of the
principal outstanding on June 20, 2007 shall be paid on that date. All remaining
outstanding principal, together with any accrued interest thereon, shall be due
and payable on June 20,2008, (the "MATURITY DATE").
(e) ADDITIONAL PRINCIPAL PAYMENTS. Borrower shall be rewired
to prepay the principal owing under the Term Loan in the following
circumstances:
(i) should the construction cost for the Madera
Facility to be constructed on the Real Property be less than $42.6 million then
Borrower shall promptly pay lender the difference between the actual
construction cost and $42.6 million: and
(ii) should Borrower obtain construction funding for
the Second Facility Borrower shall promptly pay Lender all principal and accrued
interest then outstanding.
1.4 PREPAYMENT. Borrower may prepay any amount owing under the
Term Loan, in whole or in part, at any time and without penalty, provided,
however, that any partial prepayment shall first be applied, at Lender's option,
to accrued and unpaid interest and next to the outstanding principal balance.
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1.5 RIGHT TO CONVERT DEBT TO COMMON STOCK. Lender shall have
the right to convert up to $1,500,000 of the principal owing to common shares of
Borrower. Any principal converted shall be considered paid on the date of
conversion and shall cease to accrue interest as of that date. The conversion of
debt to stock shall occur by Lender purchasing up to a total of $1,500,000 worth
of common shares at the fixed price of One 501100 Dollars ($1.50) per share.
Lender may purchase shares under this conversion right up to and including March
31, 2005. Lender shall have no right pursuant to this Agreement to convert debt
to stock ownership following that date. The expiration date for the right to
convert debt to stock ownership cannot be extended irrespective of any
performance, or lack of performance, of Borrower under the Loan Documents. If
Borrower intends to prepay the principal prior to March 31,2005, Lender shall
have the option to exercise its right to convert debt to common stock (as of the
date of the proposed prepayment) in lieu of accepting the prepayment.
1.6 PAYMENT. If any payment required to be made by Borrower
hereunder becomes due and payable on a day other than a Business Day (as defined
below), the due date thereof shall be extended to the next succeeding Business
Day and interest thereon shall be payable at the then applicable rate during
such extension. Both principal and interest are payable in lawful money of the
United States of America in same day funds at any place that Lender may, from
time to time, in writing designate. "BUSINESS DAY" shall mean a day, other than
a Saturday or Sunday, on which commercial Lenders are open for business in
California.
1.7 DEFAULT RATE. If any amount owing under the Term Loan is
not paid when due, whether at stated maturity, by acceleration, or otherwise,
will bear interest from the date on which that amount is due until the amount is
paid in full, payable on demand, at a rate which is two percent (2.00%) in
excess of the rate or rates then in effect (the "DEFAULT RATE").
1.8 LATE PAYMENT. In addition to any other rights Lender may
have hereunder, if any payment of principal or interest, or any portion thereof,
under this Loan Agreement is not paid in accordance with the terms herein, a
late payment charge equal to five percent (5%) of such past due payment may be
assessed and shall be immediately payable.
2. COLLATERAL, SUBORDINATION AND GUARANTY
2.1 REAL PROPERTY SECURITY. Borrower agrees to execute and
deliver to Lender a deed of trust dated concurrently with this Loan Agreement
(the "DEED OF TRUST") granting to Lender a first lien security interest on Real
Property (the "COLLATERAL"), to secure the payment and performance of the
obligations hereunder.
2.2 SUBORDINATION TO FINANCING. Lender agrees to execute and
deliver to Borrower a subordination of Lender's security interest in the
Collateral to the subsequent deed(s) of trust executed by Borrower to secure the
financing necessary for the construction of the Madera Facility. The form and
terms of the subordination shall be reasonably acceptable to the lender(s) that
finance the Madera Facility construction.
2.3 GUARANTY. The obligations of Borrower under this Loan
Agreement ("OBLIGATIONS") shall be secured by the continuing guaranty (the
"GUARANTY") of William L. Jones, Chairman of the Board of Borrower. The Guaranty
shall be limited to an amount equal to fifty percent of principal and interest
outstanding under the Term Loan, and shall be further limited to a total amount
not to exceed $1,000,000.00.
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2.4 ADDITIONAL CONSIDERATION. As additional consideration,
Borrower agrees that Lender will be engaged at the appropriate time, on mutually
acceptable terms substantially similar to the Design-Build Contract for the
Madera Facility, on a Design-Build Contract for the Second Facility irrespective
of whether the Loan is repaid at the time Borrower is prepared to contract for
the design and construction of that facility.
3. CONDITIONS OF LENDING
3.1 CONDITIONS PRECEDENT TO EXTENSION OF CREDIT. Lender's obligation to make the
Term Loan is subject to the conditions precedent that Lender shall have
received, before making such Term Loan, all of the following, in form and
substance satisfactory to Lender:
(a) Evidence that the execution, delivery and performance by
Borrower of the "LOAN DOCUMENTS" (as defined below) has been duly
authorized. The term "LOAN DOCUMENTS" shall mean this Loan Agreement,
the Deed of Trust, the Guaranty, and all other documents or instruments
entered into between either Borrower and Lender, or by Borrower in
favor of, or for the benefit of Lender, that recite that they are to
secure the Obligations.
(b) The executed Deed of Trust.
(c) The executed Guaranty.
(d) Lender holds a duly authorized, created and perfected
first priority security interest in the Collateral.
(e) The representations contained in Section 4 and in any
other document, instrument or certificate delivered to Lender hereunder
are true, correct and complete.
3.2 CONSENT OF OBLIGEES. As long as any principal amount of the Term
Loan remains due and owing to Lender, consent of at least a majority of the
obligees thereunder shall be required for any action that:
(a) alters or changes the rights, preferences or privileges of
such obligees;
(b) creates any new debt that is senior to the Obligations
hereunder;
(c) creates any new obligees with rights, preferences or
privileges senior to the obligees hereunder;
(d) amends or waives any provision contained in any document
evidencing Borrower's corporate existence, including, but not limited
to, articles of incorporation and by-laws, related to the Obligations
hereunder; or
(e) results in the payment or declaration of any dividend by
Borrower.
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4. REPRESENTATIONS AND WARRANTIES
Borrower hereby makes the representations and warranties to Lender set
forth in this Section. Borrower agrees that each representation and warranty is
continuing.
4.1 STATUS. Borrower is a corporation, duly formed and validly existing
under the laws of the State of California.
4.2 AUTHORITY. The execution, delivery and performance by Borrower of
the Loan Documents have been duly authorized and do not and will not: (i)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
application to Borrower; or (ii) result in a breach of or constitute a default
under any material indenture or loan or credit agreement or other material
agreement, lease or instrument to which Borrower is a party or by which it or
its properties may be bound or affected.
4.3 LEGAL EFFECT. The Loan Documents, and any instrument, document or
agreement required thereunder, when delivered to Lender, will constitute, legal,
valid and binding obligations of Borrower and are enforceable against Borrower
in accordance with their respective terms.
4.4 FINANCIAL STATEMENTS. All financial statements, information and
other data which may have been or which may hereafter be submitted by Borrower
to Lender are true, accurate and correct and have been or will be prepared in
accordance with generally accepted accounting principles consistently applied
and accurately represent the financial condition or, as applicable, the other
information disclosed therein. Since the most recent submission of such
financial information or data to Lender, Borrower represents and warrants that
no material adverse change in Borrower's financial condition or operations has
occurred which has not been fully disclosed to Lender in writing.
4.5 LITIGATION. Except as have been disclosed to Lender in writing,
there are no actions, suits or proceedings pending or, to the knowledge of
Borrower, threatened against or affecting Borrower or its properties before any
court or administrative agency which, if determined adversely to Borrower, would
have a material adverse effect on Borrower's financial condition or operations
or on the Collateral.
4.6 TITLE TO ASSETS; PERMITTED LIENS. The Borrower has good and
marketable title to all of its assets and the same are not subject to any
security interest, encumbrance, lien or claim of any third person other than:
(i) liens and security interests securing indebtedness owed by the Borrower to
the Lender; (ii) liens for taxes, assessments or similar charges either not yet
due or being duly contested in good faith; (iii) liens of mechanics,
materialmen, warehousemen or other like liens arising in the ordinary course of
business and securing obligations which are not yet delinquent; (iv) liens and
security interests which, as of the date of this Agreement, have been disclosed
to and approved by the Lender in writing; (v) purchase money liens or purchase
money security interests upon or in any property acquired or held by the
Borrower in the ordinary course of business to secure indebtedness outstanding
on the date hereof or permitted to be incurred hereunder; (vi) liens in favor of
any lender providing annual crop financing to Borrower; and (vii) those liens
and security interests which in the aggregate constitute an immaterial and
insignificant monetary amount with respect to the net value of the Borrower's
assets (collectively "PERMITTED LIENS").
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5. COVENANTS
Borrower covenants and agrees that, during the term of this Loan
Agreement, and so long thereafter as Borrower is indebted to Lender under this
Loan Agreement, Borrower will, unless Lender shall otherwise consent in writing:
5.1 USE OF PROCEEDS. Use the proceeds of the Term Loan only as
purchase-money for the acquisition of the Real Property from the trustee of the
bankruptcy estate of Coast Grain Company.
5.2 REPORTING AND CERTIFICATION REQUIREMENTS. Borrower shall deliver or
cause to be delivered to Lender, so long as five percent of the total amount of
the Term Loan (principal and accrued interest) remains outstanding, the
following financial and other information:
(a) Not later than 120 days after the end of each of
Borrower's fiscal years, a copy of Borrower's annual financial report
for such year.
(b) Not later than 60 days after the end of each of Borrower's
fiscal quarters, a copy of Borrower's financial report for that
quarter.
(c) Not later than February 15 of any year, provide monthly
cash flow and budget projections for such calendar year beginning.
5.3 PRESERVATION OF EXISTENCE; COMPLIANCE WITH APPLICABLE LAWS.
Maintain and preserve the existence of its business and all rights and
privileges now enjoyed; and conduct its business and operations in accordance
with all applicable laws, rules and regulations.
5.4 MAINTENANCE OF INSURANCE. Maintain insurance in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which
Borrower owns property. With respect to insurance covering properties in which
Lender maintains a security interest or lien, such insurance shall name Lender
as loss payee pursuant to a loss payable endorsement satisfactory to Lender and
shall not be altered or canceled except upon 30 days' prior written notice to
Lender.
5.5 INSPECTION RIGHTS. Lender may, at any reasonable time and from time
to time, conduct inspections and audits of the Collateral.
5.6 TRANSFER ASSETS. Not, after the date hereof, sell, contract for
sale, convey, transfer, assign, lease or sublet, any of its assets (including,
but not limited to, the Collateral) except in the ordinary course of business
(and then only for full, fair and reasonable consideration) without Lender's
prior written consent, which consent shall not be unreasonably withheld.
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5.7 CHANGE IN NATURE OF BUSINESS. Not make any material change in its
financial structure or the nature of its business as existing or conducted as of
the date hereof.
5.8 NOTICE. Give Lender prompt written notice of any and all (i) Events
of Default; (ii) litigation, arbitration or administrative proceedings to which
Borrower is a party or which affects the Collateral, and in which the claim or
liability exceeds $500,000.00; (iii) other matters which have resulted in, or
might result in a material adverse change in the Collateral or the financial
condition or business operations of Borrower.
6. EVENTS OF DEFAULT
Any one or more of the following described events shall constitute an
event of default (an "EVENT OF DEFAULT") under this Loan Agreement:
6.1 NON-PAYMENT. Borrower shall fail to pay any Obligations when due.
6.2 NON-PERFORMANCE. Borrower shall fail in any material respect to
perform or observe any term, covenant or agreement contained in the Loan
Documents and any such failure shall continue unremedied for more than 60 days
after the occurrence thereof.
6.3 REPRESENTATIONS AND WARRANTIES; FINANCIAL STATEMENTS. Any
representation or warranty made by Borrower under or in connection with the Loan
Documents or any financial statement given by Borrower, or any representation
made by Borrower in any other document, instrument or certificate provided to
Lender, shall prove to have been incorrect in any material respect when made or
given or when deemed to have been made or given.
6.4 INSOLVENCY. Borrower shall: (i) become insolvent or be unable to
pay its debts as they mature; (ii) make an assignment for the benefit of
creditors or to an agent authorized to liquidate any substantial amount of its
properties and assets; (iii) file a voluntary petition in Lenderruptcy or
seeking reorganization or to effect a plan or other arrangement with creditors;
(iv) file an answer admitting the material allegations of an involuntary
petition relating to Lenderruptcy or reorganization or join in any such
petition; (v) become or be adjudicated a Lendermpt; (vi) apply for or consent to
the appointment of, or consent that an order be made, appointing any receiver,
custodian or trustee, for itself or any of its properties, assets or businesses;
or (vii) any receiver, custodian or trustee shall have been appointed for all or
substantial part of its properties, assets or businesses and shall not be
discharged within 60 days after the date of such appointment.
6.5 EXECUTION. Any writ of execution or attachment or any judgment lien
shall be issued against any property of either Obligor and shall not be
discharged or bonded against or released within 60 days after the issuance or
attachment of such writ or lien.
6.6 SUSPENSION. Borrower shall voluntarily suspend the transaction of
business or allow to be suspended, terminated, revoked or expired any permit,
license or approval of any governmental body necessary to conduct Borrower's
business as now conducted.
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7. REMEDIES ON DEFAULT
Upon the occurrence of any Event of Default, Lender may, at its sole
and absolute election, without demand and only upon such notice as may be
required by law:
7.1 ACCELERATION. Declare any or all of Borrower's indebtedness owing
to Lender, whether under this Loan Agreement or any other document, instrument
or agreement, immediately due and payable, whether or not otherwise due and
payable.
7.2 PROTECTION OF SECURITY INTEREST. Make such payments and do such
acts as Lender, in its sole judgment, considers necessary and reasonable to
protect its security interest or lien in the Collateral. Borrower hereby
irrevocably authorizes Lender to pay, purchase, contest or compromise any
encumbrance, lien or claim which Lender, in its sole judgment, deems to be prior
or superior to its security interest.
7.3 FORECLOSURE. Enforce any security interest or lien given or
provided for under this Loan Agreement or under any security agreement,
mortgage, deed of trust or other document, in such manner and such order, as to
all or any part of the properties subject to such security interest or lien, as
Lender, in its sole judgment, deems to be necessary or appropriate and Borrower
hereby waives any and all rights, obligations or defenses now or hereafter
established by law relating to the foregoing.
8. MISCELLANEOUS
8.1 FURTHER ASSURANCES. From and after the date of this Agreement,
Lender and Borrower agree to do such things, perform such acts, and make,
execute, acknowledge and deliver such documents as may be reasonably necessary
or proper and usual to carry out the purpose of the Loan Documents in accordance
with their terms.
8.2 SURVIVAL OF REPRESENTATIONS. All representations, warranties,
covenants, agreements, terms and conditions made herein shall survive the
execution, delivery and closing of this Agreement and all transactions
contemplated hereunder.
8.3 NOTICES. Any notice herein required or permitted to be given shall
be in writing and may be (i) personally served, (ii) sent by United States mail
and shall be deemed to have been given when deposited in the United States mail,
registered or certified, with return receipt requested, with postage prepaid and
properly addressed or (iii) sent by an established commercial courier service
with written acknowledgment of receipt requested. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is served as
provided in this section) shall be as follows:
To Borrower: To Lender:
PACIFIC ETHANOL, INC. LYLES DIVERSIFIED, INC.
5711 North West Avenue Post Office Box 4376
Fresno, California 93711 Fresno, California 93744
Fax: (559) 435-1478 Fax: (559) 487-7948
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8.4 DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections of this Agreement are inserted for convenience and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
8.5 COSTS AND EXPENSES. Lender and Borrower shall each pay their own
respective costs and expenses incurred, or to be incurred, by said party in
negotiating and preparing this Agreement, and all exhibits hereto, and in
closing and carrying out the transactions contemplated by this Loan Agreement
(including, without limitation, attorneys', paralegals', and other
professionals' fees and costs).
8.6 SEVERABILITY. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
8.7 AMENDMENT PROVISION. The term "AGREEMENT" or "THIS AGREEMENT" and
all reference thereto as used throughout this instrument shall mean this
instrument as originally executed or, if later amended or supplemented, then as
so amended or supplemented. Any amendment to this Agreement must be in writing
signed by the party to be charged.
8.8 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which shall constitute one and the
same Agreement.
8.9 APPLICABLE LAW. The Loan Documents and the rights and obligations
of the parties thereto shall be governed by the laws of the State of California
except to the extent that Lender has greater rights or remedies under federal
law, in which case such choice of California law shall not be deemed to deprive
Lender of such rights and remedies as may be available under federal law.
8.10 ASSIGNABILITY. The Loan Documents shall be binding upon the
parties hereto and their respective successors and assigns, and shall inure to
the benefit of the parties hereto and the successors and assigns of Lender.
Lender may transfer or assign all or part of its interest hereunder to one or
more of Lender's affiliated partnerships or funds managed by it or any of their
respective directors, officers or partners.
8.11 INTEGRATED AGREEMENT. The Loan Documents constitute the entire and
integrated agreement between Lender and Borrower relating to the Term Loan and
all matters addressed herein and supersede all prior negotiations,
communications, understandings and commitments relating thereto, whether written
or oral. Should Borrower fail to complete a merger or a share exchange agreement
with a public company by December 31,2004, the parties agree that the terms of
the loan shall revert to the terms set out in the Letter of Intent dated March
10,2003, however, if such a merger does occur the Summary of Terms with Secured
Debt with Equity shall be of no force or effect.
8.12 JURY TRIAL WAIVER; REFERENCE. In any judicial action or proceeding
arising from or relating to this Agreement or the other Loan Documents,
including any action or proceeding involving a claim based on or arising from an
alleged tort, (i) Lender and Borrower hereby waive any right it or they may have
to request or demand a trial by jury and (ii) if the action is before a court of
any judicial district of the State of California, either Lender or Borrower may
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elect to have all decisions of fact and law determined by a reference in
accordance with California Code of Civil Procedure section 638 m. If such an
election is made, the parties shall designate to the court referee or referees
selected under the auspices of the American Arbitration Association in the same
manner as arbitrators are selected in Association-sponsored proceedings. The
presiding referee of the panel, or the referee if there is a single referee,
shall be an active attorney or retired judge. Judgment upon the award rendered
by such referee or referees shall be entered in the court in which such
proceeding was commenced in accordance with California Code of Civil Procedure
sections 644 and 645.
8.13 VENUE. Venue for any action hereunder shall be in an appropriate
court in Fresno, California, selected by Lender to which Borrower hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement
to be executed as of the date first above written.
LENDER: BORROWER:
LYLES DIVERSIFIED, INC., a California PACIFIC ETHANOL, INC., a California
corporation corporation
By: /S/ WILLIAM M. LYLES By: /S/ NEIL KOEHLER
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William M. Lyles, President Neil Koehler, CEO
By: /S/ WILL LYLES By: /S/ RYAN TURNER
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Will Lyles, Vice-President Ryan Turner, Secretary/COO
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
LYLES DIVERSIFIED, INC.
Post Office Box 4376
Fresno, California 93744
Attn: William M. Lyles, President
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SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
DEED OF TRUST (NON-CONSTRUCTION) SECURITY AGREEMENT
AND FIXTURE FILING WITH ASSIGNMENT OF RENTS
THIS DEED OF TRUST is made effective as of June 20, 2003, by and among
PACIFIC ETHANOL, INC., a California corporation ("TRUSTOR"), CHICAGO TITLE
COMPANY, a California corporation ("TRUSTEE"), and LYLES DIVERSIFIED, INC., a
California corporation ("BENEFICIARY").
TRUSTOR HEREBY IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE,
its successors and assigns, IN TRUST, WITH POWER OF SALE:
All that property now or hereafter acquired in the County of Madera,
State of California, described in the attached EXHIBIT "A" (herein referred to
as the "PROPERTY");
TOGETHER WITH, and including, without limitation: all of the buildings
and improvements now or hereafter erected on the property; all of the easements,
rights, rights-of-way, privileges, franchises, appurtenances, permits and
licenses, including, but not limited to, permits to operate, emission reduction
certificates, conditional use permits, and waste discharge requirements, now or
hereafter belonging to, or in any way appertaining, or in any way arising out of
ownership, development, or operation of the Property, or in any way necessary,
convenient, or required for TRUSTOR's use of the Property, or in any way being a
means of access, to said property; all water and water rights, and pumps,
pumping plants, and all shares of stock evidencing the foregoing, and all
machinery, appliances and fixtures for generating or distributing water, all
rents, issues, profits, royalties, revenue, income and other benefits of or
arising from the use or enjoyment of all or any portion of the property or the
buildings and improvements now or hereafter erected thereon (subject however to
the right, reserved to TRUSTOR, to collect, receive and retain such rents,
issues, profits, royalties, revenue, income and other benefits prior to any
default hereunder or under the Loan Documents referenced below or other evidence
of debt secured hereby); all gas, oil, water and mineral rights, profits and
stock now or hereafter derived from, appurtenant to, or pertaining to the
property (and any and all shares of stock evidencing the same); all vines,
trees, trellises, irrigation equipment, and crops now or hereafter grown on the
property; and all machinery, appliances and fixtures (including replacements and
additions thereto) now or hereafter erected thereon.
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