JOINT AGREEMENT
THIS JOINT AGREEMENT (this "Agreement") is made as of November 7th,
1997, by and among XXXXXX X. XXXXX (also known as XXX XXXXX) and XXXXXXXX X.
XXXXX, individually and as trustees under declaration of trust dated August
16, 1989, and XXXXXXXX X. XXXXX and XXXXXXX XXXXXXXX (also known as XXXXXXX
XXXXXXXX), a successor co-trustees of the testamentary test of Xxxxxx
Xxxxxxxx, deceased (collectively, "Owners"), CENTRAL COAST FEDERAL LAND BANK
ASSOCIATION, FLCA ("Lender"), XXXXXX VINEYARDS AND MANAGEMENT CO., a
California corporation ("Xxxxxx"), CANANDAIGUA WINE COMPANY, INC., a New York
corporation, successor by merger to CANANDAIGUA WINE COMPANY, INC., a Delaware
corporation, and CANANDAIGUA WEST, INC., a New York Corporation
("Canandaigua")(Canandaigua and Xxxxxx are together referred to herein as
"Lessees").
RECITALS
A. Owners are, or will be, indebted to Lender under Lender's loan no.
0500564700 ("Loan") for the amount of $733,000. The Loan is/will be evidenced
and secured by a deed of trust dated October 22, 1997, ("Deed of Trust") to
be recorded against that certain real property located in Monterey County,
California ("Property") and which is described in the Deed of Trust. The Loan
also is/will be evidenced by a Promissory Note dated October 22, 1997, as
well as various other loan documents, security agreements, UCC filings and
other instruments (hereinafter collectively referred to as "Loan Documents").
B. Owners and Xxxxxx have entered into that certain Lease dated as of
January 1, 1997 (the "Xxxxxx Lease"), with respect to a portion of the
Property.
C. Owners and Canandaigua, have entered into that certain Lease dated
as of January 1, 1997 ("Canandaigua Lease" and, together with the Xxxxxx
Lease, the "Leases"), with respect to a portion of the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. CONSENT TO LEASES: Lender hereby acknowledges the entry by Owners
into the Leases and agrees that such entry by Owners into the Leases does
not, by itself, constitute a default or event of default by Owners under the
Loan Documents; provided, however, that Lender, by such acknowledgment and
agreement, shall not be construed as having subordinated or otherwise impaired
in any manner whatsoever its liens and interests pursuant to the Loan
Documents to any liens or interests evidenced by or related to the Leases,
except as otherwise
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specifically set forth in this Agreement or in the Non-Disturbance and
Attornment Agreement (as hereinafter defined).
Concurrently herewith, Lender shall enter into separate
non-disturbance and attornment agreements (each "a Non-Disturbance and
Attornment Agreement") with each of Canandaigua and Xxxxxx with respect to
each of the Leases. Such agreements shall be in the forms attached hereto as
Exhibits A-1 and A-2. The Non-Disturbance and Attornment Agreement shall be
in recordable form and shall be recorded by Lender concurrently with the
recordation of the Deed of Trust.
2. SUBORDINATION OF LEASES. Except as otherwise specifically set forth
in this Agreement or in the Non-Disturbance and Attornment Agreement, it is
understood and agreed that the Leases are and shall remain fully junior and
subordinate to the liens and interests of Lender pursuant to the Loan
Documents, including any renewals, modifications, consolidations, replacements
and extensions of the Loan.
3. LEASE PAYMENTS. By this Agreement and pursuant to the terms of the
Deed of Trust, Owners hereby direct Lessees to pay to Lender all payments due
and owing to Owners under the Leases. Lessees shall make all checks payable to
"Central Coast Federal Land Bank Association, FLCA" and mail them to Lender
at the address shown below its signature hereto. Lessees will continue to
make all payments under the Leases to Lender until otherwise notified in
writing by Owners AND Lender. Lender agrees to apply to the Loan a sufficient
amount of said Lease payments each year to make the semi-annual installments
on the Loan.
4. NOTICE OF DEFAULT AND OPPORTUNITY TO CURE. Upon the occurrence of
any default or event of default under the Loan Documents (each, a "Loan
Event"), Lender shall (a) simultaneously provide Lessees with any written
notice provided to Owners with respect thereto or, in the event no notice to
Owners is required by the Loan Documents with respect thereto, provide
Lessees with prompt written notice thereof and (b) provide Lessees with the
opportunity to cure such Loan Event within a period of forty-five (45) days
after the date of such notice (the "Cure Period"). Notwithstanding any terms
of the Loan Documents to the contrary, during any such Cure Period, Lender
agrees not to accelerate the maturity of the Loan nor to assert any other
rights or remedies available to it under the Loan Documents, at law or in
equity, other than as may be necessary or desirable in the reasonable
business judgment of Lender to preserve and protect (but not enforce) its
liens and interest pursuant to the Loan Documents or any other collateral
serving as security of the Loan.
5. CURE BY LESSEES. Owners and Lessees hereby agree that, in the event
that either or both Lessees elect to cure any Loan Event, such Lessee shall
be entitled to a credit against the next succeeding installment(s) of rentals
due under its Lease with Owners in an amount equal to (a) the payment made by
such Lessee to cure such Loan Event, plus (b) interest thereon, from the date
of such cure payment to the date(s) of the rental installment(s) against
which such cure payment is credited, at a rate of ten percent (10%) per
annum. Solely as an agreement between Lessees, in the event either Lessee
elects to cure any such Loan Event, Lessees shall jointly make such cure
payment and agree that the amount of the cure payment shall be prorated
between them
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as follows: 60% to Xxxxxx and 40% to Canandaigua. Lessees shall not have any
obligation to cure a default by Owners and Lessees shall not have any
liability under the Loan Documents.
6. DISCLAIMERS OF CROP LIENS OR INTERESTS. Each of Lender and Owners
hereby disclaim any lien or interest in the crops growing or to be grown and
owned by the Lessees on the Property in accordance with the Leases; Lender
specifically retains its liens and interests upon crops owned by Owners.
Lender agrees to execute, deliver, record and file such further documents and
instruments (including, without limitation, amendments to the Financing
Statements) as may be reasonably requested from time to time by Lessees to
evidence the foregoing disclaimer. Lender represents and warrants that Lender
is the sole holder of the security interests evidenced by the Financing
Statements and has the power and authority to agree to the foregoing
disclaimer.
7. NOTICES. Any notices to be given hereunder will be deemed to have
been given if (a) personally served upon the party to whom it is directed or
(b) deposited in the United States mail registered or certified, addressed to
whom it is directed at the address shown below its signature hereto, or at
such other address as such party hereafter may designate for notices
hereunder.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
9. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of California
without application of the conflicts of laws provisions thereof.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective theirs, legal
representatives, successors and assigns.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement by
and among the parties hereto with respect to the subject matter hereof, and
may not be amended, modified or terminated, in whole or in part, except by an
instrument in writing signed by the parties hereto or their respective
successors or assigns. It is understood and agreed that nothing contained in
this Agreement shall be construed in any manner whatsoever as limiting or
otherwise impairing Lender from modifying or amending the Loan Documents or
otherwise servicing the Loan, including, without limitation, releasing or
otherwise modifying any collateral therefor, nor shall any notice to or
consent of Lessees be required with respect thereto except as otherwise
specifically set forth herein.
12. LOAN DOCUMENTS. The Loan Documents shall not be cross-defaulted or
cross-collateralized with any other loans made to Owners or any related
party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
OWNERS
/s/ XXXXXX X. XXXXX
-------------------------------------------
XXXXXX X. XXXXX, individually and as trustee
under declaration of trust dated August
16, 1989
Address: X.X. Xxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
/s/ XXXXXXXX X. XXXXX
-------------------------------------------
XXXXXXXX X. XXXXX, individually and as trustee
under declaration of trust dated August 16,
1989, and as successor co-trustee of the
testamentary trust of Xxxxxx Xxxxxxxx,
deceased
Address: X.X. Xxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
/s/ XXXXXXX XXXXXXXX
-------------------------------------------
XXXXXXX XXXXXXXX, as successor co-trustee of
testamentary trust of Xxxxxx Xxxxxxxx,
deceased
Address: c/o Xxxxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
LENDER
CENTRAL COAST FEDERAL LAND BANK
ASSOCIATION, FLCA
By: /s/ XXXX X. XXXXXXXXX
-------------------------------------------
Xxxx X. Xxxxxxxxx, Vice President
Address: X.X. Xxx 0000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
(SIGNATURES CONTINUED ON NEXT PAGE)
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LESSEES
XXXXXX VINEYARDS AND MANAGEMENT CO.
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President Finance
Address: 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
CANANDAIGUA WINE COMPANY, INC.
By: /s/ XXXXXX XXXXXXXXX
----------------------------------
Name:
Title: Assistant Secretary
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Omitted Exhibits:
(a) Exhibit X-0, Xxx-Xxxxxxxxxxx and Attornment Agreement, by and
between Central Coast Federal Land Bank Association, FLCA, Xxxxxx X. Xxxxx
(also known as Xxx Xxxxx) and Xxxxxxxx X. Xxxxx, individually and as trustees
under declaration of trust dated August 16, 1989, and Xxxxxxxx X. Xxxxx and
Xxxxxxx Xxxxxxxx (also known as Xxxxxxx Xxxxxxxx), as successor co-trustees
of the testamentary trust of Xxxxxx Xxxxxxxx, deceased, and Xxxxxx Vineyards
and Management Co.
(b) Exhibit X-0, Xxx-Xxxxxxxxxxx and Attornment Agreement, by and
between Central Coast Federal Land Bank Association, FLCA, Xxxxxx X. Xxxxx
(also known as Xxx Xxxxx) and Xxxxxxxx X. Xxxxx, individually and as trustees
under declaration of trust dated August 16, 1989, and Xxxxxxxx X. Xxxxx and
Xxxxxxx Xxxxxxxx (also known as Xxxxxxx Xxxxxxxx), as successor co-trustees
of the testamentary trust of Xxxxxx Xxxxxxxx, deceased, Canandaigua Wine
Company, Inc., a New York Corporation, successor by merger to Canandaigua
West, Inc., a New York corporation and Canandaigua Wine Company, Inc., a
Delaware corporation.
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