Loan No. 0-000-000
FIRST SUPPLEMENTAL MODIFICATION AND EXTENSION AGREEMENT
THIS AGREEMENT, made this 5th day of May, 1995 by and between the
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
(hereinafter called "Beneficiary") and THE GRAPE GROUP, a California
Corporation, (hereinafter called "Owner"),
WITNESSETH:
WHEREAS, Owner is the fee simple owner of the real property legally
described on Exhibit "B" attached hereto and by this reference made a part
hereof (the "Premises"); and
WHEREAS, Beneficiary is the owner and holder of a Promissory Note made
by the Owner and dated September 30, 1986 (the "Note") in the original
principal sum of THREE MILLION THREE HUNDRED FIFTY THOUSAND and No/100
(3,350,000.00) DOLLARS, which Note is secured by a Deed of Trust of even date
therewith (the "Deed of Trust") executed by Owners and recorded in the Office
of the Recorder of Xxxx County, California on September 30, 1986 in Book
5921, Page 2252 as Document No. 0441578 Pursuant to a Partial Reconveyance
dated September 1, 1992 and recorded September 28, 1992, the real property
legally described on Exhibit "A" attached hereto was released from the lien
of the Deed of Trust. As of the date of this Agreement, the lien of the Deed
of Trust covers and encumbers the Premises described on Exhibit "B." Exhibits
"A" and "B" attached hereto are incorporated into this Agreement by this
reference; and
WHEREAS, the terms of the Note and Deed of Trust have previously been
changed, altered, modified and extended pursuant to a Modification and
Extension Agreement entered into by and between the parties on April 30, 1992
and filed for record in the office of the Recorder of Xxxx County, California
on May 22, 1992 in Book 5577 at Page 1411 as Document No. 784220 (the "Prior
Modification"); and
WHEREAS, the Owner has requested that the Beneficiary agree to further
change, alter, modify and extend the terms of the Note and Deed of Trust and
the Beneficiary is willing to accommodate the request of Owner under the
terms, provisions and conditions set forth below; and
WHEREAS, Owner represents to Beneficiary that there is no second Deed of
Trust or other subsequent lien now outstanding against the Trust Premises
and that the lien of the Deed of Trust is a valid, first and subsisting lien
on said Trust Premises and Owner
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acknowledges that the Beneficiary is relying upon these representations of
Owner as an inducement to enter into this First Supplemental Modification and
Extension Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of other good and valuable consideration, the
receipt and sufficiency of which is expressly acknowledged by each of the
parties and upon the express conditions that the lien of the Deed of Trust
held by Beneficiary is a valid, first and subsisting lien on said Trust
Premises and that the execution of this Agreement will not impair the lien of
the Deed of Trust and that, as represented to the Beneficiary by Owner, there
is no existing second mortgage or other lien subsequent to the lien of the
Deed of Trust held by Beneficiary nor any outstanding contract to purchase,
(for breach of which conditions, or either of them, this Agreement shall, at
Beneficiary's sole option, not take effect and shall be voidable and/or may
be declared void and of no force and effect), IT IS HEREBY AGREED AS FOLLOWS:
1. The foregoing Recitals are incorporated into and made a part of
this Agreement by this reference.
2. The terms, provisions and conditions of this Agreement shall
supersede and take precedence over the terms, provisions and conditions of
the Prior Modification dated April 30, 1992.
3. Upon the Effective Date of this Agreement (defined below), the
maturity date of the Note heretofore extended to September 30, 1997 by the
Prior Modification is hereby further extended from September 30, 1997 to
January 1, 2003.
4. Upon the Effective Date, the interest rate set forth in the Note
shall be increased from Eight (8%) per annum to Eleven and Six/Tenths (11.6%)
per annum.
5. Upon the Effective Date, the annual principal payment of Two
Hundred Thousand and No/100 ($200,000.00) Dollars due from Owner to
Beneficiary on December 31, 1994, December 31, 1995 and December 31, 1996
pursuant to the terms of the Note and Prior Modification shall be postponed
and deferred to the maturity date of the Note, as extended by this Agreement,
to January 1, 2003. Principal payments shall resume and become due and
payable commencing on December 31, 1997 and continue annually thereafter
until the maturity date. Interest payments required by the Note, as modified
by this Agreement, are not postponed or deferred.
6. Upon the Effective Date and upon receipt from Golden State Vintners
("GSV") of an executed Acknowledgement of Purchaser in the form provided by
Exhibit "C" attached hereto and incorporated herein by this reference,
Beneficiary shall consent to transfer of title to the Premises to GSV,
without release of liability of Owner on the Note, provided, however, that a
title company acceptable to Beneficiary issues an endorsement or title
insurance policy, at
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Owner's cost and expense, fully insuring Beneficiary as to the continuing
enforceability and first lien priority of the Deed of Trust following
recording of this Agreement and transfer of title to the Premises to GEV.
7. Upon the Effective Date, the provision of the Note which provides:
"Privilege is reserved to make additional payments on the principal of
this indebtedness in sums of $100 or multiples thereof on any date when
interest becomes due and payable."
is deleted in its entirety and the terms, provisions and conditions for
prepayments under the Note as contained on Exhibit "D" attached hereto and
incorporated herein by this reference shall be substituted therefor.
8. In the event that Owner has completed the grafting of the vineyard
located on the Premises to the complete satisfaction of Beneficiary to be
determined by Beneficiary within its sole and absolute discretion, then upon
written request of Owner, Beneficiary agrees that the interest payment of
$283,156.00 due December 31, 1995 may not be paid in cash but, instead, shall
be added to the principal balance of the Note thereby creating a new loan
balance of $2,724,156.00 as of December 31, 1995. Notwithstanding the
foregoing, Owner may elect to pay Beneficiary the interest due as of December
31, 1995 whereupon the principal balance of the Note will not be increased.
9. If any term, covenant, restriction or provision of this Agreement
is determined to be void, invalid or unenforceable, the remainder of the
terms, covenants, restrictions or provisions of this Agreement shall remain
in full force and effect, and the provisions of the Note and/or Deed of Trust
amended or modified by such void, invalid or unenforceable part hereof shall
be reaffirmed and enforceable to the same extent as if this Agreement had not
been executed.
10. The parties mutually covenant and agree that, except as expressly
modified herein, the Note and Deed of Trust shall remain in full force and
effect, and all of the remaining terms and provisions of the Note and Deed of
Trust are hereby ratified and confirmed.
11. Notwithstanding the date upon which this Agreement is signed by
each of the parties hereto, the terms, provisions and conditions hereof shall
become binding and effective as of December 31, 1994 (the "Effective Date").
12. The parties mutually covenant and agree, except as expressly
modified by this Agreement, that:
Grape Group Supp.
Mod. and Ext. Agree.
04/04/95 3
(A) Owner hereby covenants, promises and agrees, restates and
reaffirms Owner's obligation (i) to pay the Note at the times,
in the manner and in all respects as therein provided; (ii) to
perform each and all of the covenants, agreements and
obligations in the Deed of Trust to be performed by Trustor
therein, at the time, in the manner and in all respects as
therein provided; and (iii) to be bound by each and all of the
terms and provisions of the Note and Deed of Trust made,
executed and delivered by Owner, recognizing, however, the
payment modifications described in this Agreement.
(B) All of the Premises shall remain, in all respects, subject to
the lien, charge or encumbrance of the Deed of Trust, or
conveyance of title (if any) affected thereby, and nothing
herein contained, and nothing done pursuant hereto, shall
affect or be construed to affect the lien, charge or
encumbrance of, or warranty of title in, or conveyance
effected by the Deed of Trust, or the priority thereof over
other liens, charges, encumbrances or conveyances, or, except
as expressly provided herein, to release or affect the
liability of any party or parties whomsoever who may now or
hereafter be liable under or on account of the Note and/or
Deed of Trust; nor shall anything herein contained or done in
pursuance hereof affect or be construed to affect any other
security or instrument, if any, held by Beneficiary as
security for or evidence of the aforesaid indebtedness.
Grape Group Supp.
Mod. and Ext. Agree.
04/04/95 4
IN WITNESS WHEREOF, this instrument has been executed by the parties
hereto in manner and form sufficient to bind them, as of the day and year
first above written.
BENEFICIARY:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
A New Jersey Corporation,
By: /s/ Xxxxxxx X. Xxxxx Attest:
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Vice President Secretary
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XXXXXXX X. XXXXX
OWNER:
THE GRAPE GROUP, A California Corporation,
By: /s/ XXXXXXX X. X'XXXXX Attest: /s/ XXXXXXX X. X'XXXXX
------------------------------ -----------------------------
Vice President Secretary
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XXXXXXX X. X'XXXXX XXXXXXX X. X'XXXXX
STATE OF ILLINOIS )
) ss:
COUNTY OF DUPAGE )
I, ____________________________, a Notary Public in and for the State
aforesaid, do hereby certify that ______________________________, personally
known to me to be a Vice President of the PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation and personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before
me this day in person and acknowledged that he signed and delivered the said
instrument as Vice President of said corporation, and caused the corporate
seal of said corporation to be affixed thereto, pursuant to authority given
by the Board of Directors of said corporation, as his free and voluntary act
and as the free and voluntary act and deed of said corporation for the uses
and purposes therein set forth.
Given under my hand and official seal this ____ day of _____________,
19___.
---------------------------
Notary Public
My Commission Expires:______________________
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PRUDENTIAL LOAN NO. 0-000-000
CONSENT
This Consent is attached to and made a part of a First Supplemental
Modification and Extension Agreement (the "Agreement") dated May 16, 1995
between THE GRAPE GROUP, a California corporation and THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA as Beneficiary.
The Undersigned, as owner and holder of the following junior lien(s):
A Deed of Trust securing additional indebtedness against the
property not to exceed $452,791.17
covering real estate described on Exhibit "B" of the Agreement, does hereby
consent to the execution and recording of the Agreement, and the terms as
outlined therein, and the Undersigned agrees that said lien shall remain
subordinate to the Deed of Trust of The Prudential Insurance Company of
America and the Prudential Deed of Trust, as modified and extended, is and
shall continue to be the prior first lien on the property described therein.
The undersigned also consent to the possible increase in the indebtedness
described in the Agreement.
Dated: 5-12-95
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COTTONWOOD VINEYARD
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
XXXXXXX X. XXXXXXXX
GENERAL PARTNER
Loan No 0 000-000
SECOND SUPPLEMENTAL MODIFICATION AGREEMENT
THIS AGREEMENT, made this 7th day of August 1997 by and between
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THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
(hereinafter called "Beneficiary"); and THE GRAPE GROUP, (hereinafter
called "Owner").
WITNESSETH:
WHEREAS, Owner is the fee simple owner of the real property legally
described on Exhibits "A" attached hereto and by this reference made a part
hereof the (the "Trust Premises"); and
WHEREAS, Beneficiary is the owner and holder of a Promissory Note dated
September 30, 1986 (the "Note") in the original principal sum of THREE
MILLION THREE HUNDRED FIFTY THOUSAND and NO/100 DOLLARS ($3,350,000.00),
which Note is secured by a Deed of Trust of even date therewith (the "Deed
of Trust") recorded in the Office of the Recorder of Xxxx County,
California on September 30, 1986 in Book 5921, Page 2252 as document No.
0441578 and pursuant to a Partial Reconveyance dated September 1, 1992 and
recorded September 28, 1992, the real property legally described on Exhibit
"A" attached hereto was released from the lien of the Deed of Trust. As of
the date of this Agreement, the lien of the Deed of Trust covers and
encumbers the Premises described on Exhibit "B"; and
WHEREAS, the terms of the Note and Deed of Trust have previously been
changed, altered, modified and extended pursuant to a Modification and
Extension Agreement entered into by and between the parties on April 30, 1992
and filed for record in the office of the Recorder of Xxxx County, California
on May 22, 1992 in Book 6677 at Page 1411 as Document No. 784220 and
subsequently by a First Supplemental Modification and Extension Agreement
dated May 5, 1995 and recorded in Xxxx County, California on May 16, 1995 as
Document No. 0000000000; and
WHEREAS, Owner has requested that Beneficiary agree to a further change,
alteration and modification of the terms of the Note and Deed of Trust and the
Beneficiary is willing to accommodate the request of Owner under the terms,
provisions and conditions set forth below; and
WHEREAS, Owner represents to Beneficiary that there is no second Deed of
Trust or other subsequent lien now outstanding against the Trust Premises and
that the lien of the Deed of Trust is a valid, first and subsisting lien and
said Trust Premises.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, and upon the express conditions that the lien of
the Deed of Trust held by Beneficiary is a valid, first and subsisting lien
on said Trust Premises and that the execution of this Agreement will not
impair the lien of the Deed of Trust and that, as represented to Beneficiary
by Owner, there is no existing second mortgage or other lien subsequent to
the lien of the Deed of Trust held by Beneficiary nor any outstanding
contract to purchase, (for breach of which conditions, or either or them,
this Agreement shall, at Beneficiary's sole option, not take affect and shall
be voidable and/or may be declared void and of no force and affect). IT IS
HEREBY AGREED AS FOLLOWS:
1. Effective as of the date of this Agreement, the annual payment date
under the Note shall be changed from December 31st of each year to
October 31st of each year. The first payment due from the Owner to
Beneficiary under the Note, as revised herein, shall be due and
payable on October 31, 1997.
2. If any term, covenant, restriction or provision of this Agreement
is determined to be void, invalid or unenforceable, the remainder
of the terms, covenants, restrictions or provisions of this
Agreement shall remain in full force and effect, and the provisions
of the Note and Deed of Trust amended or modified by such void,
invalid or unenforceable part hereof shall
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be reaffirmed and enforceable to the same extent as if this
Agreement had not been executed.
3. The parties mutually covenant and agree that, except as expressly
modified herein, the Note and Deed of Trust shall remain in full
force and effect, and all of the remaining terms and provisions of
the Note and Deed of Trust are hereby ratified and confirmed.
4. The parties mutually covenant and agree, except as expressly
modified by this Agreement, that:
(A) Owner hereby covenants, promises and agrees (i) to pay the
Note at the times in the manner and in all respects as therein
provided; (ii) to perform each and all of the covenants,
agreements and obligations in the Deed of Trust to be
performed by Trustor therein, at the time, in the manner and
in all respects as therein provided; and (iii) to be bound by
each and all of the terms and provisions of the Note and Deed
of Trust as though the Note and Deed of Trust had originally
been made, executed and delivered by Owner, recognizing,
however, the payment modification described in this Agreement.
(B) All of the Trust Premises shall remain in all respects subject
to the lien, charge or encumbrance of the Deed of Trust, or
conveyance of title (if any) effected thereby, and nothing
herein contained, and nothing done pursuant hereto, shall
affect or be construed to affect the lien, charge or
encumbrance of, or warranty of title in, or conveyance
effected by the Deed of Trust, or the priority thereof over
other liens, charges, encumbrances or conveyances, or, except
as expressly provided herein, to release or affect the
liability of any party or parties whomsoever who may now or
hereafter be liable under or on account of the Note and/or
Deed of Trust; nor shall anything herein contained or done in
pursuance hereof affect to be construed to affect any other
security or instrument, if any, held by Beneficiary as
security for or evidence of the aforesaid indebtedness.
IN WITNESS WHEREOF, this instrument has been executed by the parties
hereto in manner and form sufficient to bind them, as of the day and year
first above written.
BENEFICIARY:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
A New Jersey Corporation,
By: [ILLEGIBLE]
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Vice President
OWNER:
The Grape Group, A California Corporation,
By:
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Vice President
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